Nikhil Prabhakar Shedge vs Union Of India And Ors
2017 Latest Caselaw 992 Bom

                                    1                      WP-6597-16




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO.6597 OF 2016


Nikhil Prabhakar Shedge                       ..  Petitioner
                  V/s
Union of India and others                     ..  Respondents


                                        ...

Mr.Abhijeet Desai  for the petitioner.
Mr.Parag Vyas with Mr.P.M.Palshikar, for Union of India.
Mr.Vinod Joshi for respondent no.2.


                                 CORAM:  DR. MANJULA CHELLUR, CJ. & 
                                          M.S. SONAK, J.

                      RESERVED ON :  21st  DECEMBER, 2016
                 PRONOUNCED ON :  23rd MARCH, 2017.


JUDGMENT (Per Dr.MANJULA CHELLUR, CJ):

1                 The   petitioner   -   a   Mechanical   Engineer   by 

qualification,   is   before   us.     The   first   respondent   -   Ministry   of 

Social Justice and Empowerment, Department of Disability Affairs,

is in charge of, or instrumental in devising the guidelines for

conducting the written examination for persons with disabilities.

The second respondent is Union Public Service Commission

Tilak

2 WP-6597-16

(UPSC) which holds civil services examination. Apparently, such

civil service examinations were declared by advertisement dated

27th April 2016 annexed at Exhibit-B. The third respondent is the

Department of Personnel and Training which is responsible in

devising the rules with regard to fixing the reservation of

physically handicapped persons.

2 As per the advertisement, the proposal was to fill up

vacancies of 1079 (3% of the same to be earmarked for PWDs).

According to the petitioner, it would come to 34 vacancies in terms

of Section 33 of Persons with Disabilities Act, 1995 (for short

"PWDs Act") so far as blind/low vision candidates, 7 posts were

ear-marked. Similarly, for Locomotor Disability and Cerebral

Palsy (LDCP), 14 posts were ear-marked and 13 posts for

candidates with hearing impairment. It is also indicated in the

advertisement that number of vacancies may undergo change after

ascertaining the clear vacancies from different departments i.e.

through Cadre Controlling Authorities.

3 Apparently, the petitioner applied online for appearing

in the examination under Visually impaired quota with disability

Tilak

3 WP-6597-16

of 40% and above. On 23 rd May 2015, an advertisement was

published in view of the proposed guidelines of the first

respondent for conducting written examination for persons with

disabilities wherein out of the total posts of 1129, 29 vacancies

were reserved for physically handicapped category, 13 vacancies

for LDCP and 5 vacancies for blind/low vision, apart from 11

vacancies for hearing impairment. In this advertisement, reference

is made to office memorandum dated 26 th February 2013 issued by

the first respondent, indicating guidelines proposed to offer to the

candidates who are visually handicapped i.e. such candidates

could take assistance of a scribe/reader. This office memorandum

of 2013 indicates that persons of physical disabilities are given an

advantage of choosing their own scribe/reader/lab assistant.

Choice of such assistant can be selected by the applicant from the

Government recognized panels or the applicant can also choose a

person of his choice for the above purpose. According to the

petitioner, any supplementary certificate of a candidate may vitiate

their complete rescheduling procedure. This supplementary

certificate, unless re-verified by subjecting such candidates to the

Apex Medical Institutes by constituting a Special Board, there may

be possibility of candidates undeserving getting into the streamline

Tilak

4 WP-6597-16

under the special reserved category, debarring the genuine

candidates. Therefore, he contends that re-verification of

supplementary certificates must be implemented. So far as the

petitioner is concerned, he has undergone the test for assessment

disability for his visual disability in District Hospital, Satara. The

petitioner is certified with the 75% visual disability certified by

Medical Board constituted for the purpose comprising of the Civil

Surgeon, and Medical Officer of the Government recognized

hospital as per Exhibit-F. According to the petitioner, around 14

posts are reserved for LDCP, 7 posts are reserved for blind/low

vision and 13 posts are reserved for hearing impairment as per the

latest chart indicating tentative vacancies for civil service

examination in the year 2016.

4 The petitioner contends that to the knowledge of the

petitioner apparently admitted by the respondents in their

affidavit-in-reply, an expert committee was constituted by

respondent no.1 on 13th April 2015 to review the guidelines for

conducting written examination for candidates belonging to the

physically handicapped category. The minutes of the preliminary

discussion were reduced to writing on 15th May 2015. Clause 12

Tilak

5 WP-6597-16

of the said minutes is relevant. According to the petitioner, the

said minutes clearly indicate more number of irregularities so far

as private scribe when compared to scribes from government

panel. Mentioning is made that Government scribes are more

authentic and genuine than private scribes. According to him,

using private scribes is leading to number of malpractices which

includes improving the answers to be written by the candidates.

5 According to the petitioner, clause 17 of the minutes

rules out the possibility of using private scribes. The said minutes

is at Exhibit-H. On 13th February 2016, the Staff Selection

Commission (SSC) issued a notice for holding Combined Graduate

level examination on 8th and 22nd May 2016 so far as selecting

candidates for the purpose of filling up different categories in

various ministries/departments/organization. Clause 5(k) of the

said notice clearly indicate that the applicant cannot avail the

service of a private scribe and strictly mandates to opt for

government scribe in view of the malpractices discussed above.

On 3rd November 2015, one Sujeet Shinde - an applicant for civil

services examination scheduled in December 2015 sought availing

the services of a private scribe for visually impaired candidate, and

Tilak

6 WP-6597-16

the reply was to avail the services of private scribe in a particular

format. Therefore, according to the petitioner, the Central

Government has still kept the option of obtaining a private scribe.

6 Immediately, on 18th April 2016, the petitioner's

mother sent an Advocate's notice to the respondents to cease and

desist from allowing the candidates to avail the services of a

private scribe for appearing in the civil service examination

wherein possibility and also instances of malpractices were clearly

brought to the notice of the authorities. They also indicated the

restriction and the restraint made by the Staff Selection

Commission so far as private scribe. In the said notice, it was also

indicated that the distribution of seats are not properly done and

the seats allocated to the visually handicapped persons are much

less than the required number. In spite of repeated letters, there

seems to be no intention on the part of respondent no.1 to desist

from implementing the guidelines of 2013. According to the

petitioner, the cut-off marks obtained by physically handicapped

persons with the assistance of private scribes, are increasing day

by day which clearly indicates malpractices adopted by the

students. This is causing great disadvantage and depression to the

Tilak

7 WP-6597-16

candidates belonging to physically handicapped categirues. The

table or the chart indicating such cut-off marks obtained by the

candidates who have employed private scribe, clearly indicates

such rise in the cut-off marks. This is very clear when compared to

the result of 2015 Staff Selection Commission Examination

wherein the success of visually handicapped candidates is much

lesser in number compared to the results of civil services

examination.

7 The petitioner also points out difficulty in

implementing the mandate of identifying the post of each of the

physically handicapped categories. As a matter of fact, a chart was

prepared by the respondents in 2015 as per Exhibit-O. According

to them, the second respondent's assurance of revising for the

physically handicapped quota is completely sham and moonshine.

In order to prevent submission of false certificates for a particular

post, precautions have to be taken. Even for applying online, the

candidate shall be subject to examination by Government medical

hospital by duly constituted Medical Board. He also relied upon

the judgment of the High Court of Delhi in the matter of

Sambhavana Vs Union of India (Writ Petition No.3919 of 2014)

Tilak

8 WP-6597-16

wherein there was a direction for distribution of the vacancies in

equivalence to 3% of total posts earmarked for physically

handicapped category only after identifying each of such posts.

This was in the light of the provisions of section 33 of the PWD Act

which is at Exhibit-R. He also refers to recruitment process

adopted in the State Bank of India while recruiting Probationary

Officers. 60 vacancies out of 2200 were reserved for physically

handicapped in terms of the rules and regulations of such

recruitment.

8 As against this, the respondents have placed their

affidavit-in-reply. According to the first respondent, the

department of Empowerment of Persons with Disabilities has

issued guidelines way back in 2013 laying down the procedure for

conducting written examination for persons with disabilities which

provides facility for scribe/reader/lab assistant. A person would

fall within the definition of Section 2(t) of the Persons with

Disabilities Act only if he is having 40% disability or more. Rules

do not provide securing supplementary disability certificate. Even

otherwise, such certificates are the concern of the Union Public

Service Commission and Department of Persons with disabilities.

Tilak





                                     9                      WP-6597-16

9                 So far as the meeting held on 13 th  April 2015 by the 

Expert Committee to review the guidelines for conducting written

examination for candidates or persons with disabilities,

preliminary discussion were held and paragraphs 12 and 17

referred to the Writ Petition would reflect only the views expressed

by representatives of Union Public Service Commission, Staff

Selection Commission in the said meeting. It is not a final

conclusion or a decision. Expert committee is yet to take a

decision.

10 The first respondent further narrates the practice

followed by the recruiting agency whether UPSC or SSC, etc how

official scribes are provided for persons with disabilities. They also

submit that the provision of providing a panel of official scribes for

persons with disabilities is not adequate to meet all situations for

e.g. a scribe who is proficient in English for persons with

disabilities opts to reply in Hindi, may not be able to do justice.

Similarly, if scribe who is not conversant with Science and

Mathematics may not be able to take care of the concerns of

persons with disabilities while writing mathematics and science

based papers. The examining bodies definitely have no pool of

Tilak

10 WP-6597-16

official scribes which meet the requirement of individual or paper

based need.

11 On 10th August 2016, while taking note of the fact

that there is need to have the provision of own scribe, the expert

committee was of the view that it would be appropriate to put

reasonable restrictions so far as use of own scribe so that integrity

of the examination is not compromised. In this regard, they took

decision as under :

"While provision may be retained, the Committee felt that there should be some reasonable criteria/restrictions on use of own scribes by the candidates with disabilities so that this provision is not misused and the integrity of the examination is not compromised. The Members will submit their views on the criteria/restrictions/qualification of such scribes so that the same could be incorporated in the guidelines."

12 The allegation of the petitioner that representation of

petitioner's mother was not taken, is incorrect. The subject was

discussed in the meeting held on 10th August 2016.

Tilak





                                     11                        WP-6597-16




13              Respondent no.1 has also placed on record so far as 

the format for the issuance of disability certificate in terms of

Rules of PWDs amended by Persons with Disabilities

(Amendment) Rules 2009. Notified medical authorities are

required to issue disability certificate in the prescribed format after

evaluating the disability in terms of the guidelines prescribed by

the Ministry. Whether to accept or not to accept the said

certificate is the prerogative of the recruitment agency. As a

matter of fact, the Ministry concerned is in the process of

implementing universal Identification project for the PWDs which

envisages creation of a national data base for PWDs and also to

issue Unique ID Card to them. They are also providing an online

platform for issuance of disabilities certificates. The said project

further envisages that each disability certificate to be issued

through web portal will bear an 18 digit Unique ID number which

can be verified through the web portal. The project is scheduled

to be completed by 2018.

14 So far as section 33 of the PWDs Act, they submitted

that it is for the recruitment agency to adhere to the said provision

Tilak

12 WP-6597-16

and any deviation has to be answered by the concerned

respondent. The expert committee is envisaging more stringent

process so far as appointment of private scribes. However, the

checks and balances are already in place to prevent misuse of

guidelines dated 26th February 2013.

15 So far as second respondent from the department of

Personnel and Training, New Delhi, they contend that the action of

the second respondent is neither violative of any statutory

provision nor in contravention of any guidelines. According to

them, civil service examination is conducted by Union Public

Service Commission as per the rules notified every year. Cadre

Controlling Authority calculates vacancies for a particular service.

The physical requirement and functional classification requirement

is taken into consideration by the Cadre Controlling Authority in

consultation with Ministry of Social Justice. The vacancies

reported for physically handicapped candidates for civil services

examination of 2016 is in conformity with the provision. After

receiving the report of vacancies, the second respondent compiles

all the vacancies reported by the Cadre Controlling Authority and

the same is forwarded to UPSC. Guidelines are prescribed by first

Tilak

13 WP-6597-16

respondent. The role of the third respondent is only limited to

notifying the guidelines as mentioned in Civil Service examination

which is carefully described in paragraph 5.5 of the affidavit in

reply of the third respondent.

16 As a matter of fact, the second respondent who

conducts Civil Services Examination raised certain issues before

the expert committee and the same were being looked into

relating to implementation of guidelines for conducting written

examination of PWDs.

17 There are technical and non-technical services

participating in Civil Service Examination. Among technical

services, police services are exempted for persons with disabilities.

Out of three sub-category of disabilities, only locomotors disability

candidates are eligible for Indian Railway Traffic service. Some

non-technical services are also exempted from particular sub

category of PH. For eg. IRS (C&CE) is not available for blind

candidates. While calculating 1% for particular service keeping in

view of its physical requirement and functional classification, 1%

vacancy should be identified. Union of India would comply with

Tilak

14 WP-6597-16

the provisions of law so as to necessitate reservation for the

physically handicapped.

18 With the above material and arguments on record, we

have to analyze the same in order to arrive at a conclusion

whether the petitioner is entitled for the reliefs sought. Ministry of

Social Justice and Empowerment, Department of Disabilities

Affairs is in charge of devising the guidelines so far as welfare of

the people who are suffering from one or the other kind of

disability. In order to encourage the persons with disabilities, from

time to time, various guidelines are devised including the

guidelines for conducting the written examination for persons with

disabilities. The second respondent - Union Public Service

Commission is in charge of conducting such examinations. What

procedure has to be adopted is indicated by devising rules with

regard to the reservation of posts earmarked for physically

handicapped persons. Respondent nos.1 and 3 are actually in

charge of setting out parameters with regard to percentage of

reservation for physically handicapped persons, identification of

posts vis-a-vis the nature of disability of the candidates. In other

words, each post will be looked into from the point of nature of

work such post is required to be discharged by the person

Tilak

15 WP-6597-16

appointed, and then decide which category of physically

handicapped persons would fit in such posts. As a matter of fact,

PWDs Act provides various measures for the welfare of the

candidates suffering from physical disability.

19 Apparently, initially advertisement was only a

proposal to fill up vacancies of different categories of posts and 3%

of the total vacancies was reserved for physically handicapped

persons. Physically handicapped candidates could be Locomotor

Disability, Cerebral Palsy, blind/low vision etc, depending upon the

demand of the posts i.e. the nature of work those posts would be

requiring. Ideally, the distribution has to be between different

categories 1:1:1. However, it may not be possible to arrive at a

precise distribution of reserved posts with reference to nature of

disability because the nature of work attached to each post could

fit in only a particular nature of disability of the candidate.

Therefore, there cannot be ideal distribution. The Cadre

Controlling Authorities indicate clear vacancies for different posts

and after identifying the nature of the posts, the distribution of 3%

ear-marked quota for PWDs would be decided indicating who will

fit in which posts. Accordingly, the same will be advertised.

Tilak





                                    16                       WP-6597-16




20              The main grievance of the petitioner seems to be that 

provision to obtain private scribe may lead to malpractices and he

refers to examinations conducted by State Bank of India as well as

Staff Selection Commission. He has also given the incidents how

the malpractices has come to light. He also gives a comparative

statement that more number of cut-off marks which are secured by

physically handicapped/blind and low vision candidates in public

service examination when compared to other examinations,

wherein private scribe is barred. Straightway, one cannot arrive at

a conclusion that the candidates with low vision and blind are

securing more percentage of cut-off marks in UPSC only on

account of obtaining a private scribe. One cannot totally ignore

the possibility of malpractices as well. So far as the stand of the

respondents, the Department of Empowerment of Persons with

disabilities has come out with guidelines in 2013 indicating the

procedure for conducting written examination for persons with

disabilities wherein provision is made for facility of scribe/lab

assistant. Whether supplementary disability certificate is to be

prescribed or not, as suggested by the petitioner, is totally a policy

decision which has to be considered by the concerned respondent

i.e. the Department of Persons with disabilities. We cannot opine

Tilak

17 WP-6597-16

that there is total lack of concern and anxiety shown on behalf of

the respondents.

21 A preliminary meeting was held by the expert

committee constituted for the purpose in the month of April 2015

to review the guidelines for conducting written examination. The

discussions clearly narrate that everyone took active participation

and expressed their individual opinion. There was no finality to

the discussion. The minutes clearly indicate the proposals made

from different quarters who were representing different

departments. It is seen that there is shortage of scribes from the

government panel and there are certain practical difficulties on

account of language since a scribe from the panel may not be

acquainted with different languages and conversant with different

subjects. Unless the panel consists of scribes who are conversant

with different languages, different subjects, they may not be doing

justice to the candidate who chooses them from the panel for

assisting them in the examination. Being satisfied with the need o

have a scribe, the expert committee was of the opinion that with

reasonable restrictions so far as use of own scribe without

compromising with the integrity of the examination should be

Tilak

18 WP-6597-16

indicated. One of the subject matters for such discussion was the

representation of the mother of the petitioner. The rules of 2009

concerning the issue before us do prescribe the format how the

disability certificate is to be issued. This again is with reference to

guidelines prescribed by the Ministry. The expert committee is at

the moment in the process of coming out with a stringent process

so far as appointment of private scribe in order to remove the so-

called malpractices or irregularities. As a matter of fact, the role

of the third respondent is to notify the guidelines indicated by the

expert committee, approved by the first respondent and the role of

the 3rd respondent is to ascertain the vacancies and distribute the

vacancies for a particular service on the basis of physical

requirement and functional classification. This is also done in

consultation with Ministry of Social Justice. The second

respondent who conducts examination, has also suggested certain

measures before the Expert committee. Technical and non-

technical services are also part of the vacancies for which civil

service examination is conducted depending upon the nature of

jobs, physical handicapped persons may not be recommended for

such technical posts. Therefore, there may not be perfect

distribution of vacancies meant for physically handicapped

Tilak

19 WP-6597-16

persons. In the absence of conclusion of procedure/guidelines or

norms by the expert committee, one cannot postpone conducting

the civil service examination. The procedure which is in practice

till new guidelines are prescribed, has to be followed. What is

ideal in the thinking of the petitioner may not be suitable so far as

the policy of the Government. The policy making involves

consideration of various suggestions, deficit of required experts to

work as scribe/ reader/lab assistant. Taking into totality of the

situation, they must evolve a best policy with the available

infrastructure. It is also laudable that the Ministry concerned is in

the process of implementing universal identification project of

PWDs which results in creation of a national data base for PWDs.

With the introduction of ID Card to large extent, the malpractices

now aggrieved would be reduced. One can go through the web

portal and find out who is who, and who is the disabled.

However, the said project is likely to be completed in the year

2018. Securing view from the experts across the world, the

respective departments concerned are in the process of making the

system function better and better in the future.

22 The grievance of the petitioner seems to be

apprehension and the belief that every private scribe opted with an

Tilak

20 WP-6597-16

intention only to secure more marks by following malpractices or

illegal method. The restrictions and the restraints so far as these

private scribes would definitely check the malpractices or illegality

to a large extent. If it has not come to the notice of the

authorities, anyone can bring the same to the notice of the

authorities and suitable action can be taken. The entire material

would indicate that the departments concerned are not sleeping

over the matter, but are in the process of coming out with a

definite solution and are in the process of arriving at proper checks

and balances.

23 In that view of the matter, since the reliefs sought

clearly indicate more of a policy decision which is already initiated

by the concerned departments, we decline to grant any positive

directions except saying that the respondents must speed up their

conclusions with regard to various measures and guidelines in the

offing touching the contention of civil service examinations vis-a-

vis PWDs.

24 With these observations, petition is disposed of.

        (M.S. SONAK, J.)                                 (CHIEF JUSTICE)



Tilak