TITLE OF THE RESEARCH PAPER

Interpretation of cases under Rights of persons with disabilities Act, 2016

By
Name of the Student: V. Krithi Sahithya
Roll No.: 18LLB092
Semester: VI
Name of the Program: 5 year (B.A., LL.B.)
Name of the Faculty Member
Prof. R. Bharath Kumar

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
ACKNOWLEDGEMENT

I am highly indebted to Prof. R. Bharath Kumar, for giving me a wonderful opportunity to

work on the topic:Interpretation of cases under rights of persons with disabilities Act,
2016, and it is because of his excellent knowledge, experience and guidance, this project is
made with great interest and effort. I would also like to thank my seniors who have guided
my novice knowledge of doing research on such significant topic. I would also take this as an
opportunity to thank my parents for their support at all times. I have no words to express my
gratitude to each and every person who have guided and suggested me while conducting my
research work."

V. KRITHI SAHITHYA

2
TABLE OF CONTENTS

Introduction

Case analysis

1. Disabled Rights Group and Ors. Vs. Union of India (UOI) and Ors.
2. Eera through Manjula Krippendorf Vs. State (Govt. of NCT ofDelhi) and Ors.

3. Harshit Agarwal and Ors. Vs. Union of India (UOI) and Ors.
4. High Court of Kerala Vs. Reshma A. and Ors.
5. Justice Sunanda Bhandare Foundation Vs. Union of India (UOI) and Ors.
6. Nawal Kishore Sharma Vs. Union of India (UOI) and Ors.
7. Pankaj Sinha Vs. Union of India (UOI) and Ors.
8. Pranay Kumar Podder Vs. State of Tripura and Ors.
9. Purswani Ashutosh Vs. Union of India (UOI) and Ors.
10. Rajive Raturi Vs. Union of India (UOI) and Ors.
11. Shyam Narayan Chouksey Vs. Union of India (UOI) and Ors.
12. State of Uttar Pradesh and Ors. Vs. Achal Singh
13. V. Surendra Mohan Vs. State of Tamil Nadu and Ors.
14. Vidhi Himmat Katariya and Ors. Vs. The State of Gujarat and Ors.
15. Vikash Kumar Vs. Union Public Service Commission and Ors.

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INTRODUCTION

“The Act replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995. It fulfils the obligations to the United National Convention
on the Rights of Persons with Disabilities (UNCRPD), to which India is a signatory. 
According toThe Rights of Persons with Disabilities (RPwD) Act, 2016, enacted on
28.12.2016 and came into force from 19.04.2017, Disability has been defined based on an
evolving and dynamic concept.”
Disabilities covered

 Disability has been defined based on an evolving and dynamic concept.

 The types of disabilities have been increased from existing 7 to 21 and the Central
Government will have the power to add more types of disabilities. The 21 disabilities
are given below:
1. Physical Disability
 Locomotor Disability
 Visual Impairment
 Hearing Impairment
 Speech and Language Disability
2. Intellectual Disability
 Specific Learning Disabilities
 Autism Spectrum Disorder
3. Mental Behaviour (Mental Illness)
4. Disability caused due to-
 Chronic Neurological Conditions such as
 Blood Disorder
5. Multiple Disabilities
 Persons with "benchmark disabilities" are defined as those certified to have at least 40
per cent of the disabilities specified above.

Rights and entitlements

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  “Responsibility has been cast upon the appropriate governments to take effective
measures to ensure that the persons with disabilities enjoy their rights equally with
others.”
 “Additional benefits such as reservation in higher education (not less than 5%),
government jobs (not less than 4 %), reservation in allocation of land, poverty
alleviation schemes (5% allotment) etc. have been provided for persons with
benchmark disabilities and those with high support needs.”
 “Every child with benchmark disability between the age group of 6 and 18 years shall
have the right to free education.”
 “Government funded educational institutions as well as the government recognized
institutions will have to provide inclusive education to the children with disabilities.”
 “For strengthening the Prime Minister's Accessible India Campaign, stress has been
given to ensure accessibility in public buildings (both Government and private) in a
prescribed time-frame.”

Guardianship

 “The Act provides for grant of guardianship by District Court under which there will
be joint decision – making between the guardian and the persons with disabilities.”

Establishment of Authorities

 “Broad based Central & State Advisory Boards on Disability are to be set up to serve
as apex policy making bodies at the Central and State level.”
 “Office of Chief Commissioner of Persons with Disabilities has been strengthened
who will now be assisted by 2 Commissioners and an Advisory Committee
comprising of not more than 11 members drawn from experts in various disabilities.”
 “Similarly, the office of State Commissioners of Disabilities has been strengthened
who will be assisted by an Advisory Committee comprising of not more than 5
members drawn from experts in various disabilities.”
 “The Chief Commissioner for Persons with Disabilities and the State Commissioners
will act as regulatory bodies and Grievance Redressal agencies and also monitor
implementation of the Act.”

5
  “District level committees will be constituted by the State Governments to address
local concerns of PwDs. Details of their constitution and the functions of such
committees would be prescribed by the State Governments in the rules.”
 “Creation of National and State Fund will be created to provide financial support to
the persons with disabilities. The existing National Fund for Persons with Disabilities
and the Trust Fund for Empowerment of Persons with Disabilities will be subsumed
with the National Fund.”

Penalties for offences

 “The Act provides for penalties for offences committed against persons with
disabilities and also violation of the provisions of the new law.”
 “Any person who violates provisions of the Act, or any rule or regulation made under
it, shall be punishable with imprisonment up to six months and/ or a fine of Rs
10,000, or both. For any subsequent violation, imprisonment of up to two years and/or
a fine of Rs 50,000 to Rs five lakh can be awarded.”
 “Whoever intentionally insults or intimidates a person with disability, or sexually
exploits a woman or child with disability, shall be punishable with imprisonment
between six months to five years and fine.”
 “Special Courts will be designated in each district to handle cases concerning
violation of rights of PwDs.”

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CASE ANALYSIS
1. Disabled Rights Group and Ors. Vs. Union of India (UOI) and Ors.1

FACTS

“Public Interest Litigation was filed for the benefit of persons suffering from disability. The
first issue was related to the non-implementation of three percent reservation of seats in
educational institutions. Second equally important issue raised in petition was to provide
proper access to orthopaedic disabled persons so that they were able to freely move in the
educational institution and access the facilities. Third issue pertains to pedagogy that is
making adequate provisions and facilities of teaching for disabled persons, depending upon
the nature of their disability, to enable them to undertake their studies effectively.”

ISSUES

“The first issue related to the non-implementation of 3% reservation of seats in educational

institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the
Disabilities Act, 2016. Second equally important issue raised in this petition, which is
intimately connected with the first issue, is to provide proper access to orthopaedic disabled
persons so that they are able to freely move in the educational institution and access the
facilities. Third issue pertains to pedagogy i.e., making adequate provisions and facilities of
teaching for disabled persons, depending upon the nature of their disability, to enable them to
undertake their studies effectively.”

REASONING

“All those institutions which were covered by the obligations provided under Section 32 of
the Disabilities Act, 2016 should comply with the provisions of Section 32 while making
admission of students in educational courses of higher education each year. They should
submit list of the number of disabled persons admitted in each course every year to the Chief
Commissioner and/or the State Commissioner. It would also be the duty of the Chief
Commissioner as well as the State Commissioner to enquire as to whether these educational
institutions had fulfilled the aforesaid obligation. Appropriate consequential action against
those educational institutions should be initiated against defaulting institutions.”

1
(2018)2SCC397.

7
“UGC would be free to include persons from amongst Central Advisory Board, State
Advisory Boards, Chief Commissioner of State Commissioners appointed under the
Disabilities Act. Committee should undertake a detailed study for making provisions in
respect of accessibility as well as pedagogy and would also suggest the modalities for
implementing those suggestions, their funding and monitoring, etc. The Committee should
also lay down the time limits within which such suggestions could be implemented. The
Expert Committee might also consider feasibility of constituting an in-house body in each
educational institution for taking care of day to day needs of differently abled persons as well
as for implementation of the Schemes that would be devised by the Expert Committee.”

CONCLUSION

The court dispose of these writ petitions with the following directions:

“While dealing with the issue of reservation of seats in the educational institutions, we have
already given directions in para 8 above that the provisions of Section 32 of the Disabilities
Act, 2016 shall be complied with by all concerned educational institutions. In addition to the
directions mentioned therein, we also direct that insofar as law colleges are concerned,
intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI)
as well. Other educational institutions will notify the compliance, each year, to the UGC. It
will be within the discretion of the BCI and/or UGC to carry out inspections of such
educational institutions to verify as to whether the provisions are complied with or not.”

“Insofar as suggestions given by the Petitioner in the form of "Guidelines for Accessibility for
Students with Disabilities in Universities/Colleges" are concerned, the UGC shall consider
the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC
would be free to include persons from amongst Central Advisory Board, State Advisory
Boards, Chief Commissioner or State Commissioners appointed under the Disabilities Act.
This Committee shall undertake a detailed study for making provisions in respect of
accessibility as well as pedagogy and would also suggest the modalities for implementing
those suggestions, their funding and monitoring, etc. The Committee shall also lay down the
time limits within which such suggestions could be implemented. The Expert Committee may
also consider feasibility of constituting an in-house body in each educational institution (of
teachers, staff, students and parents) for taking care of day to day needs of differently abled
persons as well as for implementation of the Schemes that would be devised by the Expert
Committee. This exercise shall be completed by June 30, 2018.”

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Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in
July, 2018. On receipt of the report, the matter shall be placed before the Court.

2. Eera through Manjula Krippendorf Vs. State (Govt. of NCT of Delhi)

and Ors.2

FACTS

“A First Information Report (FIR) was lodged against Respondent alleging that he had
committed rape on Appellant and on the basis of the FIR, investigation was carried on and
eventually charge sheet was laid for the offence under Section 376(2)(1) of Code before the
Magistrate, who, in turn, committed the case to the special Fast Track Court. A petition was
filed before High Court praying that the matter should be transferred to the Special Court
under the Protection of Children from Sexual Offences Act (POCSO) as the functional age of
the Appellant was hardly around 6 to 8 years and there was necessity for trial to be conducted
in a most congenial, friendly and comfortable atmosphere and the proceeding should be video
graphed. The matter was finally disposed of and transfer of the case to the Special Court
established under the Act was not allowed. Hence, present appeal by Appellant.”

ISSUES

“The pivotal issue that emanates for consideration in these appeals, by special leave, pertains
to interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act,
2012 (for short, "the POCSO Act"), and the primary argument of the learned Counsel for the
Appellant is that the definition in Section 2(d) that defines "child" to mean any person below
the age of 18 years, should engulf and embrace, in its connotative expanse, the "mental age"
of a person or the age determined by the prevalent science pertaining to psychiatry so that a
mentally retarded person or an extremely intellectually challenged person who even has
crossed the biological age of 18 years can be included within the holistic conception of the
term "child".”

REASONING

“The purpose of referring to the statement of objects and reasons and the preamble of the
POCSO Act was to protect the children from the sexual assault, harassment and exploitation,

2
AIR2017SC3457.

9
and to secure the best interest of the child. The Act recognizes the necessity of the right to
privacy and confidentiality of a child to be protected and respected by every person by all
means and through all stages of a judicial process involving the child.”

“When two constructions were reasonably possible, preference should go to one which helps
to carry out the beneficent purpose of the Act; and that apart, the said interpretation should
not unduly expand the scope of a provision. Thus, the Court had to be careful and cautious
while adopting an alternative reasonable interpretation. The acceptability of the alternative
reasonable construction should be within the permissible ambit of the Act.”

“It is the foremost duty of the Court while construing a provision to ascertain the intention of
the legislature, for it is an accepted principle that the legislature expresses itself with use of
correct words and in the absence of any ambiguity or the resultant consequence does not lead
to any absurdity, there is no room to look for any other aid in the name of creativity. There
was no quarrel over the proposition that the method of purposive construction had been
adopted keeping in view the text and the context of the legislation, the mischief it intends to
obliterate and the fundamental intention of the legislature when it comes to social welfare
legislations. While interpreting a social welfare one has to be guided by the 'colour', 'content'
and the context of statutes. The Judge had to release himself from the chains of strict
linguistic interpretation and pave the path that serves the soul of the legislative intention and
in that event, he should become a real creative constructionist Judge.”

“The Act deals with various facets that were likely to offend the physical identity and mental
condition of a child. The legislature had dealt with sexual assault, sexual harassment and
abuse with due regard to safeguard the interest and well-being of the children at every stage
of judicial proceeding in an extremely detailed manner. The procedure was child friendly and
the atmosphere as commanded by the provisions of the Act had to be congenial. The
protection of the dignity of the child is the spine of the legislation.”

“The mentally retarded person has a right to proper medical care and physical therapy and to
such education, training, rehabilitation and guidance as will enable him to develop his ability
and maximum potential. He has a right to economic security and to a decent standard of
living. Whenever possible, the person should live with his own family or with foster parents
and participate in different forms of community life. He has a right to a qualified guardian
when this is required to protect his personal well-being and interests. He has a right to
protection from exploitation, abuse and degrading treatment. For the above reasons, the only

10
conclusion that could be arrived at was that definition in Section 2(d) defining the term "age"
could not include mental age.”

“The State/District Legal Services Authority has to conduct an inquiry and award the
adequate compensation by completing the inquiry. Had the Accused been alive, the trial
would have taken place in a Court of Session. As the Accused has died and the victim was
certified to be a mentally disabled person under the Act, the State Legal Services Authority
should award the compensation.”

“A reading of the Act as a whole makes it clear that the intention of the legislator was to focus
on children, as commonly understood i.e., persons who were physically under the age of 18
years. Does the Judge put himself in the place of the legislator and ask himself whether the
legislator intended a certain result, or does he state that this must have been the intent of the
legislator and infuse what he thinks should have been done had he been the legislator? It is at
this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what
the law ought to be instead of what the law is. A reading of the Objects and Reasons of the
Act together with the provisions contained therein would show that whatever was the
physical age of the person affected, such person would be a person with disability who would
be governed by the provisions of the said Act. Thus, it was clear that viewed with the lens of
the legislator that it would be a violence both to the intent and the language of Parliament if
one would read the word "mental" into Section 2(1)(d) of the Act. Given the fact that it was a
beneficial/penal legislation, one could extend it only as far as Parliament intended and no
further.”

CONCLUSION

“Leave granted. Thus, it is clear that viewed with the lens of the legislator, we would be doing
violence both to the intent and the language of Parliament if we were to read the word
"mental" into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal
legislation, we as Judges can extend it only as far as Parliament intended and no further.”

3. Harshit Agarwal and Ors. Vs. Union of India (UOI) and Ors.3

3
MANU/SC/0060/2021.

11
FACTS

“The Petitioners were students who appeared in the National Eligibility-cumEntrance Test
(NEET) examination 2020 for admission to the first year of Bachelor of Dental Surgery
(BDS). They did not obtain the minimum marks prescribed by Sub-regulation (ii) of
Regulation II of the Dental Council of India, Revised BDS Course Regulations, 2007.
Therefore, they were not eligible for admission to BDS course. The second Respondent
recommended the lowering of qualifying cut off percentile for admission to BDS course. The
Petitioners submitted a representation to Respondent No. 1 seeking to lower the qualifying
cut off percentile on the recommendation of the Executive Committee of Respondent No. 2.
The recommendation of the Executive Committee was not accepted by the first Respondent.”

ISSUES

“Whether the exercise of the discretion by the first Respondent is for the purpose specified in
the Regulations and whether irrelevant considerations have been taken into account making
the decision irrational.”

REASONING

“The first Respondent reduced the minimum marks for admission into first-year BDS course
for the previous year in consultation with the second Respondent. In spite of the
recommendation made by the second Respondent to reduce the minimum marks for the
current year, the first Respondent deemed it fit not to lower the minimum marks for the
current year. While arriving at a decision not to lower the minimum marks it does not appear
that the first Respondent had consulted the second Respondent in accordance with the proviso
to Sub-Regulation of the Regulation II. There was no dispute that the minimum marks had
been reduced by the first Respondent for the super speciality courses for the last year and
AYUSH courses for the current year. If reducing minimum marks amounts to lowering the
standards, the first Respondent would not do so for super speciality courses. This court were
in agreement with the Petitioners that lowering the minimum marks and reducing percentile
for admission to the first-year BDS course would not amount to lowering the standards of
education. There are about seven thousand seats available for admission to the first-year BDS
course during the year. This court were not impressed by the argument that there were
sufficient number of Dentists in the country and, therefore, there was no harm in the seats
being unfilled. However, there was force in the submission that the fee charged by the private
dental colleges was a deterrent for the seats not being filled up. Only two hundred sixty-five

12
out of seven thousand seats were vacant in government colleges. All the other unfilled seats
were in private Dental colleges. The Managements of private Dental Colleges shall consider
reducing the fee charged by them to encourage students to join the Colleges. The first
Respondent had exercised its discretion and lowered the minimum marks for admission to
first-year BDS course. Therefore, set aside the decision of the first Respondent to not reduce
the minimum marks for admission to BDS course as it suffers from the vices of illegality and
irrationality. Thus, direct that the vacant seats in first year BDS course shall be filled up from
the candidates who had participated in the NEET (UG) courses after lowering the percentile
mark by ten percentile. The candidates belonging to the general category who have secured
forty percentile shall be eligible to be considered for admission in the first year BDS course.
Likewise, students belonging to the SC/ST/OBC categories shall be qualified if they have
secured thirty percentile. In so far as General candidates with bench mark disabilities
specified under the Rights of Persons with Disabilities Act, 2016, they would be eligible if
they have secured thirty-five percentile. The admissions shall be made strictly in accordance
with merit and the admission process shall be completed. Any other student who had
qualified in NEET (UG) - 2020 even without lowering the minimum marks and was willing
to participate in the admission process shall also be considered for admission to BDS course.”

CONCLUSION

The Writ Petitions are allowed.

4. High Court of Kerala Vs. Reshma A. and Ors.4

FACTS

“A notification was issued by the High Court inviting applications for appointment to the
posts of Munsiff-Magistrate in the Kerala Judicial Service, against regular vacancies and
against a carry-forward called 'No Candidates Available (NCA). After the competitive
examination, a list of candidates qualified for selection was prepared and was published. The
merit list prepared by the Appellant was approved by the Governor and was notified by the
Government through a gazette notification. By way of this notification, thirty two candidates
were appointed as Munsiff-Magistrate trainees by direct recruitment against regular vacancies
and five candidates were subsequently appointed against NCA. All the selected candidates

4
MANU/SC/0012/2021.

13
are undergoing training. Two petitions were filed before the High Court, claiming that several
vacancies had arisen for the post of Munsiff- Magistrate, which were not specified in the
notification inviting applications. The Respondents, who were the original Petitioners,
claimed that in accordance with Rule 7(2) as amended with all vacancies which arise for a
period of one year after the approval of the merit list by the Governor, were to be filled from
the approved merit list. The Single Judge of the High Court, by a judgment and order held
that Rule 7(2) provides that vacancies existing and arising within one year from the date of
approval of the merit list by the Governor were to be filled up from the select list, unless a
fresh list comes into force before the lapse of a year.”

“The Single Judge held that since a special Rule governs the selection and appointment of
candidates to a post, the Appellant-as the High Court on its administrative side, could not
deny appointment on the ground that the recruitment would not fall within the timelines
prescribed in Malik Mazhar Sultan. Denial of appointment to the additional vacancies would,
in the view of the Single Judge, violate Articles 14 and 16 of the Constitution. The Single
Judge further held that in case the appointments in accordance with the Kerala Rules, 1991
were not in consonance with the directions of this Court, the Appellant would have to seek
permission or furnish an explanation before this Court. Rejecting the contention of the
Appellant that no vacancy in excess of the thirty-seven specified in the notification can be
filled up, the Single Judge held that only a probable number of vacancies was specified in the
notification. The writ petitions were allowed and the Appellant was directed to forward an
additional list of candidates from the merit list to the Governor for approval and appointment
to the posts of Munsiff-Magistrate. This judgment and order of the Single Judge was affirmed
by the Division Bench in appeal. The Division Bench held that amended Rule 7(2) provides
that the approved list was valid for the notified vacancies and the vacancies arising within
one year from the date of approval by the Governor or till a fresh list comes into force.”

ISSUES

Two issue fall for determination in this appeal:

(i) Whether Rule 7 of the Kerala Rules, 1991 is contrary to the directions of this Court in
Malik Mazhar Sultan (3); and

(ii) “Whether the Respondents and similarly placed candidates who find place in the merit list
approved by the Governor can be appointed to vacancies arising within one year from the
date of approval of the merit list, in excess of those specified in the notification.”

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REASONING

“The submission which had been urged on behalf of the Respondents, which found
acceptance by the High Court was that since the tenure of the approved list was for a period
of one year from the date of the approval of the Governor or the publication of a fresh list,
whichever takes place earlier, the vacancies which had arisen between the date of the
approval of the Governor and the expiry of one year from the date of approval must also be
added in to form a part of the selection. There were significant problems in accepting this line
of interpretation which had found acceptance by the High Court. This line of interpretation
requires the appointing authority to take into account vacancies which had arisen in the
subsequent recruitment year in making appointments in pursuance of the selection for
recruitment year. This, as a matter of first principle, was impermissible. The determination of
probable vacancies in terms of Rule 7(1) was a determination which was based on the
vacancies which were projected during the course of that recruitment year. This exercise
could not cover, consistent with the mandate of Art 14 and Art 16, future vacancies of a
subsequent year of selection. Nor does Rule 7(1) bring vacancies of a future year within the
computation of probable vacancies. Adopting the interpretation which had been suggested on
behalf of the Respondents would lead to serious anomalies. A notification was issued by the
Appellant. The consequence of accepting the arguments of the Respondents would be that
posts which have to be allocated for recruitment against the existing and anticipated
vacancies would have to be reduced by allocating them to recruitment year. The Appellant
had expressly determined and notified the vacancies which had arisen. The Respondents
argued that though the original notification referred to a probable number of vacancies the
corrigendum deleted the expression probable. This, was not a matter of moment since the
essence of the controversy lies in interpreting the provisions of the Rules as they stand. If the
Respondents were right in their submission, this would require the Appellant to progressively
remove from the ambit of the vacancies which were notified for the subsequent recruitment
year, the vacancies which were allocated to the previous year on the basis of a supposed
interpretation of Rule 7(2).”

“This would clearly be impermissible and bring uncertainty to the recruitment for subsequent
years. It will cause serious prejudice to candidates who qualify in terms of eligibility during
the recruitment process by reducing the number of probable vacancies and adding them to the
previous recruitment cycle. The difficulty in accepting the line of approach of the High Court
rests on constitutional principles. Undoubtedly, the validity of Rule 7(2) was not in question

15
before the High Court. Counsel for the Respondents argued that it did not lie in the province
of the Appellant to raise a doubt about the validity of its own rules, more particularly Rule
7(2). It was necessary to note that the Appellant did not suggest or argue that Rule 7(2)
should be held to be invalid. The submission was that the expression probable denotes an
addition/deduction which had to be made due to the imponderables of service such as death,
resignation and promotion. The submission of the Appellant was that a literal interpretation
of Rule 7(2), without reference to the constitutional requirement of not operating a select list
beyond the notified vacancies, would render the Rule violative of Articles 14 and 16 and such
an interpretation should be avoided. In other words, his submission was that a constitutional
interdict could not be overcome in the manner it has been suggested by the Respondents and
a harmonious interpretation of the judicial service Rules in the light of the directions in Malik
Mazhar Sultan should have been resorted to by the High Court. This court was in agreement
with this line of submissions, based as it was on the precedent of this Court.”

“The answer to this submission, which had been proffered by the Respondents was that under
Rule 7(1) a probable number of vacancies was required to be notified and since an exact
number was not notified, there was no constitutional bar in exceeding the thirty-seven
probable vacancies that were notified in 2019. The difficulty in accepting the submission was
simply this it attributes to the expression probable number of vacancies a meaning which was
inconsistent with basic principles of service jurisprudence, the requirement of observing the
mandate of equality of opportunity in public employment under Articles 14 and 16 and was
contrary to the ordinary meaning of the expression. Probable number of vacancies was based
on computing the existing vacancies and the vacancies anticipated to occur during the year. It
also accounts for the possibility of inclusion of some of the candidates that are in the wait-
list. However, the expression probable could not be interpreted as a vague assessment of
vacancies that isn't founded in reason and could be altered without a statutorily prescribed
cause. To allow the concept of probable number of vacancies in Rule 7(1) to trench upon
future vacancies which would arise in a succeeding year would lead to a serious
constitutional infraction. Candidates who become eligible for applying for recruitment during
a succeeding year of recruitment would have a real constitutional grievance that vacancies
which have arisen during a subsequent year during which they have become eligible have
been allocated to an earlier recruitment year. If the directions of the High Court are followed,
this would seriously affect the fairness of the process which has been followed by glossing
over the fact that vacancies which had arisen would be allocated for candidates in the select

16
list. Such a course of action would constitute a serious infraction of Articles 14 and 16 and
must be avoided. To reiterate, the submission of the Appellant which inclined to accept was
not that Rule 7(2) was invalid but that a harmonious interpretation of Rules 7(1) and (2) must
be adopted that was consistent with the Article 142 directions in Malik Mazhar Sultan to
bring the Rules in accord with the governing principles of constitutional jurisprudence in
matters of public employment.”

“The High Court noticed in the course of its analysis that the acceptance of the submission of
the Respondents would lead to the Appellant, on its administrative side, having to carry out
piece-meal training for candidates who are appointed to vacancies arising in the year after
approval of the merit list. The approval of the Governor was received. If vacancies which
arise were to be reckoned in making appointments, the training of candidates who are
appointed against the subsequent vacancies would take place piece-meal and in a sporadic
manner after the initial batch of recruits has been sent on training. Upon receipt of the
approval of the Governor, candidates to whom appointment orders were issued joined their
training and were in fact in the midst of their training. The solution which the High Court had
indicated was, as it clarified, not in the nature of a direction but only our thoughts, expressed
allowed.”

“The solution suggested by the High Court was that candidates may be selected and sent for
training even against vacancies which had not arisen, in anticipation of vacancies arising in
future. The High Court observed that when appointments were made, they could only be
regularly made to vacancies that actually arose until that date. The High Court took notice of
the fact that on its administrative side, appointment of fresh recruits to vacancies which
would arise in the ensuing year would put the training process into jeopardy. However, it
suggested that in consultation with the government, a procedure could be devised by which
training could be commenced for candidates against vacancies which had still not arisen and
which would arise in the future. The High Court even suggested that the trainees appointed
against possible future vacancies could be paid a stipend. The solution which had been
suggested by the High Court is plainly unacceptable. Persons were sent on training on being
appointed to the judicial service and there could not be two categories of trainees, one of
whom receives a stipend since the vacancies for which they had been selected were yet to
arise. Moreover, there would be a serious discontent if not all the candidates who were sent
on training in expectation of future vacancies could be accommodated in service. This court
had emphasized the said aspect, for the simple reason that the High Court was cognizant of

17
the serious problems which would result in the administration if its decisions were to hold the
field. The suggestion by the High Court that the administration must send on training,
candidates for whom there were no vacancies in the service was contrary to law. In the event
that some of the candidates who were sent on training could not be absorbed at a future date
for want of vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates
who were sent for training. This would also cause a burden on the exchequer requiring it to
pay a stipend to persons who were yet to be recruited to the judicial service, there being no
present vacancies to accommodate them. The judgment of the High Court could not be
sustained. Therefore, set aside the impugned judgment and order of the Division Bench of the
High Court.”

CONCLUSION

“The court is of the view that the judgment of the High Court cannot be sustained. We
accordingly allow the appeals and set aside the impugned judgment and order of the Division
Bench of the High Court of Kerala dated 26 August 2020. The writ petitions filed by the
Respondents before the High Court shall stand dismissed. There shall be no order as to costs.
60. Pending applications, if any, stand disposed of.”

5. Justice Sunanda Bhandare Foundation Vs. Union of India (UOI) and

Ors.5

FACTS

“In Justice Sunanda Bhandare Foundation v. Union of India and Anr., a three-Judge Bench
took note of various orders passed in the petition, especially the prayer for implementation of
the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (the 1995 Act) and for declaration that denial of appointment to
the visually disabled persons in the faculties and college of various universities in the
identified posts is violative of their fundamental rights guaranteed Under Articles 14 and 15
read with Article 41 of the Constitution of India and opined that the 1995 Act is to be treated
as an enactment for empowerment of the persons under disability and further expressed its
concern with regard to the apathy shown by various State Governments and the
instrumentalities of the States. The present interlocutory application was filed to issue

5
(2017)14SCC1.

18
directions to the Central Government, State Governments and Union Territories to comply
with that judgment. The Petitioner submitted that there was no complete compliance of the
judgments passed by the present Court. She submitted that the reasons for non-compliance
were the perceptible though all the States and Union Territories should have complied with
the various provisions of the 1995 Act.”

ISSUES

Whether there was no complete compliance of judgments passed by present Court

REASONING

“Under the 1995 Act, the Parliament had shown its concern and provided for reservation for
many categories and this Court by various judgments had directed for implementation of the
Act and some States have implemented the provisions to a certain extent. Section 85 of The
Rights of Persons with Disabilities Act, 2016 (2016 Act) stipulates for appointment special
public prosecutor. Thus, emphasis is on the special court, speedy trial and special public
prosecutor. More rights have been conferred on the disabled persons and more categories
have been added. That apart, access to justice, free education, role of local authorities,
National fund and the State fund for persons with disabilities have been created. The 2016
Act is noticeably a sea change in the perception and requires a march forward look with
regard to the persons with disabilities and the role of the States, local authorities, educational
institutions and the companies. The statute operates in a broad spectrum and the stress is laid
to protect the rights and provide punishment for their violation. All the States and the Union
Territories were directed to file compliance report keeping in view the provisions of the 2016
Act. The States and the Union Territories must realize that under the 2016 Act their
responsibilities have grown and they are required to actualize the purpose of the Act, for there
is an accent on many a sphere with regard to the rights of the disabilities. When the law is so
concerned for the disabled persons and makes provision, it is the obligation of the law
executing authorities to give effect to the same in quite promptitude. The matter was listed.”

CONCLUSION

“The compliance report to be filed by the States shall be supplied to the learned Counsel for
the Petitioner, learned Counsel for the Union of India as well as to the learned Counsel for the
applicant/intervenor so that they can assist the Court. The Registry is directed to send a copy

19
of the order passed today to the Chief Secretaries of the States and the Administrators of the
Union Territories. Let the matter be listed on 16th August, 2017.”

6. Nawal Kishore Sharma Vs. Union of India (UOI) and Ors.6

FACTS

“The Appellant was earlier registered in the SCI's offshore fleet service but at the relevant
time he was released at his own request and transferred to the SCI's foreign going seaman's
roster, with fresh registration. Those in seaman's roster category, were engaged on contract,
specific for the sea going vessel. The Appellant joined as a crew on the foreign going vessel
and he was discharged with the declaration of being permanently unfit for sea service, due to
Dilated Cardiomyopathy. While rejecting the claim for disability compensation, the SCI
recorded in the impugned order that this was not a case of a seaman becoming incapacitated
on account of an accidental injury suffered on the vessel. Since, the relevant Clause 5.9. F(ii)
specifically speaks of being medically unfit as a result of injury while in employment and the
claim was not based on injury, the disability compensation was held to be unmerited. The
High Court while considering the challenge to the SCI's rejection order, considered the
literature relied upon by the Appellant. The Judge while appreciating that reduced blood
pumping capacity of the heart could be one of the occupational diseases of the seafarer, the
disability compensation was not merited unless hundred percent incapacity was found in
course of employment on the vessel. Here however, there was nothing to show that the
seaman was not fit for another job of general nature. The High Court interpreted both Clause
21 and Clause 25 and found that the Appellant's case does not fall in the category of Clause
21 since there was no impediment in his performance of normal day to day affairs. In other
words, the seafaring work may not be feasible but the person was capable of discharging duty
of another job of general nature. The High Court, therefore, found no basis to overturn the
SCI's rejection of the claim for Disability compensation.”

ISSUES

“Whether impugned order of rejection of claim for Disability compensation was perverse.”

REASONING

“To secure coverage of Clause 5.9. F (ii), the incapacity must relate to injury being suffered
whilst in employment. In the present case, the Appellant never claimed to have suffered any
6
MANU/SC/0064/2021.

20
injury during his ship duty. Moreover, the impaired heart function could not reasonably be
attributed to his nine-month engagement. In such circumstances, although the seaman
commenced his engagement with a fitness certificate, it would be unreasonable, to relate the
medical condition of the Appellant as having causal connection with his sea voyage
engagement. The Dilated Cardiomyopathy condition may prevent the man from performing
sea service but the same would not be an impediment for him to perform other jobs. With this
interpretation, the High Court held that only severance compensation under Clause 25 was
payable for the seaman. There was no reason to reach another conclusion on the implication
of Clause 21 and Clause 25, for the Appellant. Section 2(i) of the Persons with Disabilities
Act, 1995 takes into account visual disability, locomotor disability, mental illness, mental
retardation, hearing impairment and leprosy. A heart ailment is not covered within the
definition of disability in the Act and we would hesitate to import words, which the
legislature chose not to, in their definition of disability. When the 1995 Act was replaced by
the Rights of Persons with Disabilities Act, 2016, a person with disabilities was defined under
Section 2(s) as a person with long term physical, mental, intellectual, or sensory impairment
which prevent his full and effective participation in society. Section 2(zc) defines, specified
disability as those mentioned in the Schedule to the 2016 Act. In the said Schedule, physical
disability, intellectual disability, mental behaviour, were specified. The dilated
Cardiomyopathy condition of the Appellant was neither a specified disability nor was the
same relatable to the broad spectrum of impairments, which hinders his full and effective
participation in society. Therefore, Dilated Cardiomyopathy condition of the Appellant did
not bring his case within the ambit of either the 1995 Act or of the 2016 Act. The High Court,
therefore, was correct in concluding that Dilated Cardiomyopathy condition would not
facilitate any benefit to the Appellant under Section 47 of the Disability Act.”

CONCLUSION

“The appeal is found devoid of merit and is dismissed leaving the parties to bear their own
cost.”

7. Pankaj Sinha Vs. Union of India (UOI) and Ors.7

FACTS

7
AIR2018SC4297.

21
“The present writ petition had been filed to issue directions to the Union of India and the
States, the Respondent, to conduct periodic national survey for determining new cases
relating to detection rate of leprosy and to publish and bring in the public domain the reports
of National Sample Survey on Leprosy and further to conduct regular and sustainable
massive awareness campaigns for the general public to dispel the fear associated with leprosy
and support and encourage the people afflicted by the said disease to lead a life of equality
and dignity.”

ISSUES

“Whether directions need to be issued for determining new cases relating to detection rate of
leprosy.”

REASONING

“The Petitioner had drawn the attention to the fact that although leprosy as a disease has been
scientifically and medically proven to be curable and manageable with MDT, yet the fact
remains that millions of people and their family members still suffer from leprosy and the
social, economic and cultural stigma attached to the said disease. This fact reveals the lack of
awareness and the prevailing misguided notions in the society pertaining to leprosy. Further,
the miserable plight of the persons afflicted with leprosy did not end here. It had been
highlighted that due to the disability that entails as a result of the disease, the people affected
by leprosy suffer additional discrimination in the form of denial of access to health services,
education and livelihood options.”

“At present, majority of the populace which was afflicted with leprosy live as a marginalized
Section in the society deprived of even basic human rights which manifestly results in
violation of the fundamental right to equality and right to live with dignity. It had been
pointed out that several instances have come to fore highlighting that the persons affected
with leprosy were being provided with APL cards and not BPL cards which prevented these
people from claiming benefits under various schemes brought out by the Government, such
as the Antyodaya Anna Yojana (AAY), which again deprives this Section of the populace
from claiming their right to food. Deprivation of housing and other basic civic amenities,
adequate sanitary facilities and rehabilitation programmes are yet other serious concerns
which, if not addressed, would lead to the entire reformatory process taking a huge setback.
Thus, it would be appropriate to issue the directions that the Union and the States are to
undertake periodical national surveys for determining the prevalence rate and new cases

22
detection rate of leprosy and, at the same time, publish and bring the reports of the National
Sample Survey of Leprosy conducted and subsequent thereto into the public domain. That
apart, the activities of the National Leprosy Eradication Programme (NLEP) must be given
wide publicity.”

“On leprosy day which is internationally observed every year on the last Sunday of January,
the Union of India along with all State Governments should organize massive awareness
campaigns to increase public awareness about the signs and symptoms of leprosy and the fact
that it is perfectly curable by the Multi Drug Therapy (MDT). Awareness should also be
spread about the free availability of MDT at all government health care facilities in the
country, the prescribed course for MDT treatment and all other relevant information related
to MDT. The content and information contained in the awareness programmes should
discontinue to use frightening images of people disabled with leprosy and instead use positive
images of cured persons sharing their experiences of being cured of leprosy. The Union and
the States are to ensure that drugs for management of leprosy and its complications including
the MDT drugs are available free of cost and do not go out of stock at all Primary Health
Centres (PHCs) or, as the case may be, public health facilities in the country.”

CONCLUSION

The writ petition is, accordingly, disposed of. There shall be no order as to costs.

8. Pranay Kumar Podder Vs. State of Tripura and Ors.8

FACTS

“The Appellants appeared in the medical examination and obtained the requisite marks to be
selected. Two students were declared to be ineligible to take admission to MBBS course at
the stage of counselling on the score that they suffered partial Colour Vision Deficiency
(CVD). The Appellants approached the High Court seeking relief that the declaration of
ineligibility by the concerned Committee was absolutely indefensible and legally
impermissive. The submission of the Appellants was built on the foundation that there were
no Regulations framed by the Medical Council of India under the Indian Medical Council
Act, 1956, debarring the likes from admission, for in the absence of a Regulation, neither any
instruction nor resolution of the MCI could throttle the right to appear. The stand and stance
8
(2017)13SCC351.

23
put forth by the Appellants was resisted by the State placing reliance on the recommendations
of the expert Committee of the Medical Council of India. The Division Bench of the High
Court expressed the view that the guidelines issued by the Medical Council of India deserves
to be given its due weightage by the Court and it should not interfere solely on the ground
that the Regulations were silent with regard to the denial of admission to an individual
suffering from colour blindness. It dismissed the petition.”

ISSUES

“Whether Medical Council can debar candidates suffering from Colour Vision Deficiency to
undertake medical courses on basis of decision taken by General Body.”

REASONING

“Though the present Court was not deciding the controversy at present, certain directions
were issued to have a complete picture and projection. A human being is a magnificent
creation of the Creator and that magnificence should be exposed in a humane, magnanimous
and all-inclusive manner so that all tend to feel that they have their deserved space. Total
exclusion for admission to medical courses without any stipulation in which they really can
practise and render assistance would tantamount to regressive thinking. The march of science,
apart from constitutional warrant and values, commands inclusion and not exclusion. That is
the way a believer in human rights should think.”

“Certain directions were issued. The Medical Council of India shall constitute a Committee of
experts that shall include the representatives of the Medical Council of India, experts from
genetics, ophthalmology, psychiatry and medical education, who shall be from outside the
members of the Medical Council of India. The expert Committee shall review the situation
and take note of the prevalent conditions of the study and practice and suggest changes for
adoption in the medical course keeping in view the international practices. The expert
Committee shall also concentrate on diagnostic test for progress and review of the disorder
and what are the available prosthetics aids to assist CVD medical practitioners and what areas
of practice could they undertake without difficulty with these aids. The Committee shall
submit a report to this Court.”

CONCLUSION

Let the matter be listed for further hearing on 11th July, 2017.

24
9. Purswani Ashutosh Vs. Union of India (UOI) and Ors.9

FACTS

“The Petitioner who suffers from a specified disability low vision appeared in the NEET
(UG) Examination as a candidate of the physically handicapped category. He ranked four
hundred nineteen in the physically handicapped category. Aggrieved by the refusal and/or
failure of the concerned Respondents to give the Petitioner the benefit of reservation for the
physically disabled, the Petitioner approached this court complaining of discrimination and
arbitrariness.”

ISSUES

“Whether person with benchmark disability of low vision could be denied benefit of
reservation for admission to MBBS Medical Course.”

REASONING

“The Regulations on Graduate Medical Education, 1997/Medical Education Regulations

framed under Section 33 of the Medical Council Act, 1956 had statutory force and were
binding on the Medical Council of India. The Committee having opined that the Petitioner
suffers from a benchmark disability, its view with regard to the suitability of the Petitioner for
the MBBS course could not override the Medical Education Regulations. The 2016 Act, in
particular Section 32 thereof, read with the Medical Education Regulations clearly provides
for reservation of seats in the MBBS Course for persons like the Petitioner with specified
benchmark disability of low vision.”

“The contention that Section 32 was not attracted since it only provides for reservation to
higher educational institutions and not to technical institutions imparting technical education,
appears to be fallacious since higher educational institution is a generic term which would
include institutions imparting all kinds of higher education, including technical education,
whereas technical institution was a specific term for those institutions which only impart
technical education. Therefore, the Petitioner could not be denied admission to the MBBS
course if he qualifies as per his merit in the category of Persons with Disability. In the event,

9
AIR2018SC3999.

25
the Petitioner was found to be entitled to admission, he shall be given admission in the
current academic year.”

CONCLUSION

“This Court holds that the Petitioner cannot be denied admission to the MBBS course if he
qualities as per his merit in the category of Persons with Disability. In the event, the
Petitioner is found to be entitled to admission, he shall be given admission in the current
academic year 2018-19. The Writ Petition is disposed of accordingly.”

10. Rajive Raturi Vs. Union of India (UOI) and Ors.10

FACTS

“Present petition has been filed in public interest on behalf of the disabled persons for proper
and adequate access to public places. The petition seeks to provide all accessibility
requirements to meet the needs of visually disabled persons in respect of safe access to roads
and transport facilities. This petition was filed in the year 2005 and the various measures
taken by the Government has been monitored in the status report filed before the present
Court. The Appellant filed an affidavit in response of the status report depicting ten actions
that remains to be done at the end of the Respondents.”

ISSUES

“Whether adequate steps taken to comply with acceptable mandatory components of physical
accessibility.”

REASONING

“Ten action points which were enumerated by the Petitioner, for providing proper access to
public facilities to the persons suffering from visually disability, are now statutorily
recognized under the Disabilities Act, 2016. The Legislature has casted a duty on the
executive wing for making provisions in this behalf. This legal position was accepted by the
Union of India in its affidavit. In this affidavit, the Respondent had itself mentioned various
provisions under the Disabilities Act, 2016 which mandate the Respondents to make
provisions for these facilities. Not only this, such provisions even specified the deadlines for
undertaking these measures. Thus, it becomes a statutory obligation on the part of the Central
10
(2018)2SCC413.

26
Government as well as the State Governments to do the needful by the target dates. Though,
Central Government had taken various measures, many State Governments have not
responded at all.”

CONCLUSION

“Matter be listed for directions after three months on receiving reports in terms of the
aforesaid order. In the reports to be filed, the Respondents shall also state the follow-up
action taken during the intervening period in the meantime.”

11. Shyam Narayan Chouksey Vs. Union of India (UOI) and Ors.11

FACTS

“The present petition was filed seeking writ, commanding the Respondents to take
appropriate steps for paying respect to the National Anthem and to issue directions to specify
what needs to be done and not to be done when the National Anthem is played.”

ISSUES

“Whether National Anthem be played in cinema halls or not.”

REASONING

“There is no objection to the singing of the National Anthem accompanied by mass singing so
long as it is done with due respect as a salutation to the motherland and maintenance of the
proper decorum. Thus, three aspects are obvious: First the National Anthem is not only to be
respected, but it is a respect as a salutation to the motherland; second, the list of occasions
cannot be exhaustively stated; and, third, proper decorum has to be maintained when the
National Anthem is played or sung. The playing of the National Anthem in the cinema halls
on the screen may not be made mandatory and the word "shall" may be substituted with
"may" until a final decision is taken by the Committee and, thereafter, by the Central
Government. The Committee appointed by the Union government shall submit its
recommendations to the competent authority. The playing of the National Anthem prior to the
screening of feature films in cinema halls is not mandatory, but optional or directory. Citizens
or persons are bound to show respect as required under executive orders relating to the
National Anthem of India and the prevailing law, whenever it is played or sung on specified
11
AIR2018SC357.

27
occasions. The exemption granted to disabled persons shall remain in force till the final
decision of the competent authority.”

CONCLUSION

The writ petition is, accordingly, disposed of. There shall be no order as to costs.

12. Vidhi Himmat Katariya and Ors. Vs. The State of Gujarat and Ors.12

FACTS

“In the writ petition, the respective Petitioners-students had prayed for an appropriate writ,
order or direction directing the Respondents-State Government to treat the Petitioners eligible
for reservation under Persons with Disability (PwD category) and grant them admission in
MBBS Course for the academic year. It was the case on behalf of the respective Petitioners
that all of them were eligible to pursue MBBS Course and they shall be granted admission
under the PwD category as they were suffering from locomotor disability. All of them are
seeking admission to MBBS Course in the reserved category under PwD quota.”

ISSUES

“Whether Petitioners entitled for admission in MBBS course under PwD category.”

REASONING

“The respective Petitioners were suffering from locomotor disability and they were seeking
admission in the MBBS course under PwD category. As per notification and Appendix H-
Guidelines regarding admission of students with Specified Disabilities under the 2016 Act
with respect to admission in MBBS course, a candidate suffering from locomotor disability of
less than forty percent shall be eligible to pursue MBBS course but not eligible to be granted
the benefit of reservation under PwD quota. It further provides that both hands intact, with
intact sensation, sufficient strength and range of motion were essential to be considered
eligible for medical course. As per the opinion of the Medical Board, Medical Appellate
Board and even the Medical Board of AIIMS, the respective Petitioners were not eligible for
admission in MBBS course under PwD quota as they did not fulfil the essential criteria to be
fulfilled as per Appendix H. Therefore, as such, the respective Petitioners were not fulfilling
the essential eligibility criteria provided as per Appendix H and therefore they were not
eligible for admission in the medical course under PwD quota.”

12
MANU/SC/1387/2019.

28
“It was mainly contended on behalf of the Petitioners that the NEET UG 2019 brochure was
released and the notification amending Regulations, 1997 whereby Appendix H was added to
the erstwhile Regulations, 2017 had been issued, the case of the Petitioners was required to
be considered as per the provisions prior to issue of notification. The contention had no
substance. The relevant essential eligibility criteria were required to be considered when the
Petitioners were to get admission in the MBBS course under PwD quota. It was required to
be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert
Committee submitted the report-Guidelines for admission of persons with Specified
Disabilities, which was placed before the Executive Committee of the Council in its meeting
held wherein after due discussion and deliberations it was decided to approve the same.”

“It was also decided that the said Expert Committee Report should be communicated to the
Ministry of Health and Family Welfare in view of the Schedule for counselling for admission
to MBBS course. However, for admission for the academic year, it was at the stage of a draft
notification and the Graduate Medical Education Regulations, 1997 were not amended in
light of the recommendations of the Expert Committee constituted by the MCI which had
issued the Disability Guidelines, this Court directed to give admission as per the unamended
Graduate Medical Education Regulations, 1997. However subsequently and before the
admission for the academic year were given, notification had been published and the
Graduate Medical Education Regulations, 1997 had been amended. Therefore, in the facts
and circumstances of the case, it could not be said that Rules of the game were changed
midway, as sought to be contended on behalf of the Petitioners. The essential eligibility
criteria as per Appendix H was required to be considered at the time when the candidates
were seeking admission in the medical course under PwD category. It was also required to be
noted that even the candidates seeking admission in PwD quota were required to appear
before the concerned Medical Board at the time of actually seeking admission and after
NEET result was declared.”

“Therefore, the relevant date for considering the essential eligibility criteria as per Appendix
H shall be the date on which the candidates-Petitioners sought admission in the MBBS course
under PwD quota. Much prior thereto, notification had been issued and published and
therefore the respective Petitioners shall be governed by notification. So far as the submission
on behalf of the Petitioners that while denying admission to the Petitioners the State
Government and/or authorities had not considered the relevant parameters and had not
considered that the respective Petitioners were able to perform well was concerned, it was

29
required to be noted that in the present case all the expert bodies including the Medical
Board, Medical Appellate Board and even the Medical Board of AIIMS, consisting of the
experts had opined against the Petitioners and their cases were considered in light of the
relevant essential eligibility criteria as mentioned in Appendix H-Both hands intact, with
intact sensation, sufficient strength and range of motion. Therefore, when the experts in the
field had opined against the Petitioners, the Court would not be justified in sitting over as an
appellate authority against the opinion formed by the experts-in the present case, the Medical
Board, Medical Appellate Board and the Medical Board of AIIMS, more particularly when
there were no allegations of mala fides.”

CONCLUSION

“In view of the above and for the reasons stated above, the present Petitioners are not entitled
to the reliefs as prayed. Hence, all the writ petitions filed Under Article 32 of the Constitution
of India deserve to be dismissed and are accordingly dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.”

13. Vikash Kumar Vs. Union Public Service Commission and Ors.13

FACTS

“The Appellant had a disability in the form of dysgraphia, commonly known as a Writer's
Cramp. The Respondent-Commission issued notification for the CSE. The Department of
Personnel and Training issued the CSE Rules 2018 providing for the manner and conduct of
the examination. The general instructions provided that all candidates must write their papers
in their own hand and will not be allowed the help of a scribe. Exceptions to this Rule were
provided for blind candidates with locomotor disability and cerebral palsy where the
dominant (writing) was affected to the extent of slowing the performance of function
(minimum of forty impairment). Candidates within the exception were allowed the help of a
scribe. An additional compensatory time of twenty minutes per hour was also to be granted to
such candidates.”

“In his online application for the CSE 2018, the Appellant declared himself to be a person
with a benchmark disability of forty percent or more. By his email, the Appellant requested
the Commission to provide him with a scribe for the examination. The Respondent-
13
MANU/SC/0067/2021.

30
Commissioner rejected the request on the ground that a scribe could be provided only to blind
candidates and candidates with locomotor disability or cerebral palsy with an impairment of
at least forty percent and the Appellant did not meet this criterion. Aggrieved by the denial of
the services of a scribe for the CSE 2018, the Appellant moved the Tribunal.”

“The Tribunal dismissed the application filed by the Appellant on the ground that, since
Hospital had refused to issue a disability certificate, the Appellant could not claim access to a
scribe as a disabled candidate. The Appellant instituted a writ petition before the High Court
of Delhi and challenged the legality of the CSE Rules 2018. Meanwhile, he obtained a
medical certificate from National Institute of Mental Health and Neuro Sciences
(NIMHANS), declaring that he had a Writer's Cramp and would require a scribe during his
examinations. A Division Bench of the High Court of Delhi by an order declined to interfere
with the order of the Tribunal on the ground that the Appellant had not qualified at the
Preliminary Examination for CSE 2018 and thus, the relief seeking an amendment of the CSE
Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose.”

ISSUES

“Whether Appellant would be entitled to facility of scribe for appearing at Civil Services
Examination and any other competitive selection conducted under authority of government.”

REASONING

“MSJE was the nodal ministry which was entrusted with implementing the provisions of the
RPwD Act, 2016. As the nodal ministry, it had formulated guidelines. These guidelines,
confine access to a scribe, reader or lab assistant to candidates having benchmark disabilities
within the meaning of Section 2(r). Yet, as the nodal ministry, it recognizes that these
guidelines are not exhaustive of the circumstances or conditions in which a scribe could be
provided. On the contrary, the MSJE had recognized the prevalence of other medical
conditions not identified as disabilities per se but which may hamper the writing capability of
a person. It specifically leaves it open to every examining body to consider such cases for the
grant of scribe, extra time or other facilities in consultation with the Ministry of Health and
Family Welfare against the production of a medical certificate, in line with those prescribed
for candidates with benchmark disabilities. The concept of benchmark disabilities under the
RPwD Act, 2016 has specifically been adopted in relation with the provisions of Chapter VI
and Chapter VII.”

31
“Chapter VI contains special provisions for persons with benchmark disabilities. Among
those provisions was Section 31 (free education for children with benchmark disability),
Section 32 (reservation in higher educational institutions), Section 33 (identification of posts
for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and
Section 37 (Special Schemes and Development Programmes). Chapter VII contains special
provisions for persons with benchmark disabilities in need of high support. Thus, the concept
of benchmark disabilities had been adopted by the legislation bearing in mind specific
provisions which were contained in the law for persons meeting this description.”

“Conflating the rights and entitlements which inhere in persons with disabilities with the
notion of benchmark disabilities does dis-service to the salutary purpose underlying the
enactment of the RPwD Act 2016. Worse still, to deny the rights and entitlements recognized
for persons with disabilities on the ground that they did not full fill a benchmark disability
would be plainly ultra vires the RPwD Act 2016. The principle of reasonable accommodation
captures the positive obligation of the State and private parties to provide additional support
to persons with disabilities to facilitate their full and effective participation in society. The
concept of reasonable accommodation was developed in Section (H) below. For the present,
suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental
rights to equality, the six freedoms and the right to life under Article 21 would ring hollow if
they were not given this additional support that helps make these rights real and meaningful
for them. Reasonable accommodation was the instrumentality-are an obligation as a society-
to enable the disabled to enjoy the constitutional guarantee of equality and non-
discrimination.”

“When the government in recognition of its affirmative duties and obligations under the
RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil
Services Examination, it could not be construed to confer a largesse. Nor does it by allowing
a scribe confer a privilege on a candidate. The provision for the facility of a scribe was in
pursuance of the statutory mandate to ensure that persons with disabilities were able to live a
life of equality and dignity based on respect in society for their bodily and mental integrity.
There was a fundamental fallacy on the part of the UPSE/DoPT in proceeding on the basis
that the facility of a scribe shall be made available only to persons with benchmark
disabilities. This was occasioned by the failure of the MSJE to clarify their guidelines. The
whole concept of a benchmark disability within the meaning of Section 2(r) was primarily in

32
the context of special provisions including reservation that are embodied in Chapter VI of the
RPwD Act 2016.”

“Conceivably, the Parliament while mandating the reservation of posts in government

establishments and of seats in institutions of higher learning was of the view that this
entitlement should be recognized for persons with benchmark disabilities. As a matter of
legislative policy, these provisions in Chapter VI had been made applicable to those with
benchmark disabilities where a higher threshold of disability was stipulated. Except in the
specific statutory context where the norm of benchmark disability had been applied, it would
be plainly contrary to both the text and intent of the enactment to deny the rights and
entitlements which were recognized as inhering in persons with disabilities on the ground that
they did not meet the threshold for a benchmark disability. A statutory concept which had
been applied by Parliament in specific situations could not be extended to others where the
broader expression, persons with disability, was used statutorily.”

“The guidelines which had been framed could by no means be regarded as being exhaustive
of the situations in which a scribe could be availed of by persons other than those who suffer
from benchmark disabilities. The MSJE did not in its counter affidavit before this Court treat
those guidelines as exhaustive of the circumstances in which a scribe could be provided for
persons other than those having benchmark disabilities. This understanding of the MSJE was
correct for the simple reason that the rights which emanate from provisions such as Section 3
extend to persons with disability as broadly defined by Section 2(s). Therefore, DoPT and
UPSC had fundamentally erred in the construction which has been placed on the provisions
of the RPwD Act 2016. To confine the facility of a scribe only to those who have benchmark
disabilities would be to deprive a class of persons of their statutorily recognized entitlements.
To do so would be contrary to the plain terms as well as the object of the statute. Insofar as
the case of the Appellant was concerned, his condition has been repeatedly affirmed by
several medical authorities including National Institute of Mental Health and Neuro Sciences
(NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of
this Court was clear in opining that the Appellant has a specified disability inasmuch as he
had a chronic neurological condition.”

“This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writer's
cramp has been found successively to be a condition which the Appellant had, making it
difficult for him to write a conventional examination. To deny the facility of a scribe in a

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situation such as the present would negate the valuable rights and entitlements which are
recognised by the RPwD Act 2016. Therefore, the Appellant would be entitled to the facility
of a scribe for appearing at the Civil Services Examination and any other competitive
selection conducted under the authority of the government. Cases such as the present offer
this court an opportunity to make a meaningful contribution in the project of creating the
RPwD generation in India. A generation of disabled people in India which regards as its birth
right access to the full panoply of constitutional entitlements, robust statutory rights geared to
meet their unique needs and conducive societal conditions needed for them to flourish and to
truly become co-equal participants in all facets of life. Therefore, set aside the impugned
judgment and order of the High Court.”

CONCLUSION

“Pending application (s), if any, stand disposed of. Ms. Sanchita Ain, learned Counsel has
also assisted the Court. Ms. Ain has provided valuable inputs to the Court during the course
of the hearing. Before concluding we record our appreciation of the assistance which has
been rendered by Mr. Rajan Mani, learned Counsel, Ms. Madhavi Divan, learned Additional
Solicitor General and Mr. Naresh Kaushik, learned Counsel.”

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