Calcutta High Court (Appellete Side)
Ankur Manna vs The State Of West Bengal & Ors on 28 November, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLAE SIDE
Present:-
Hon'ble Mr. Justice Aniruddha Roy
W.P.A. 23056 of 2022
With
W.P.A. 23203 of 2022
With
W.P.A. 24186 of 2022
Ankur Manna
Vs.
The State of West Bengal & Ors.
For the petitioner: Mr. Kallol Basu, Adv.,
Mr. Suman Banerjee, Adv.,
Mr. S. Sarkar, Adv.
For respondent nos. 1 to 3: Mr. Swapan Kumar Datta, Adv.,
Mr. Rajat Datta, Adv.
For respondent nos. 4 and 5: Mr. Sirsanya Bandyopadhyay, Adv.,
Mr. Arka Kumar Nag, Adv.
For National Medical Commission: Mr. Indranil Roy, Adv.,
Mr. Sunit Kumar Roy. Adv.
Reserved on: 22.11.2022
Judgment on: 28.11.2022
ANIRUDDHA ROY, J.:
1. This cluster of writ petitions are interrelated. The issues involved in these writ
petitions pertain to reservation of seats for the persons with physical
disabilities in respect of the National Eligibility Cum Entrance Test- Post
Graduation, 2022 (for short, the said Entrance Test) being conducted on All
2
India Basis by the National Board of Examinations for Post Graduate Medical
Courses.
Facts
:-
2. 50% seats of all Post Graduate Medical Courses under the said Entrance Test
are filled up by way of counseling conducted by Medical Council Committee on
All India basis which are called the All India Seats and the rest are filled up
by way of counseling conducted by the State Authorities which are called State
Quota Seats. The result of the said entrance examination was declared. The
petitioner secured the rank as 71356. Since the petitioner did not serve in
rural, remote and difficult areas, he was not eligible to the reservation provided
for the In-Service Doctors. However, he was eligible to participate in the
counseling in the open category.
3. The petitioner suffers from Deltoid Paralysis at his left arm. This is a left
upper limb disability. This locomotor disability of the petitioner was assessed
being 50% by the appropriate authority, Annexure P-2 to the writ petition.
With the said disability the petitioner was eligible to avail of the reservation
provided for the persons with disabilities. In the counseling process for
admission for the Post Graduate Medical Courses for previous year the
petitioner participated under the physically handicapped (PH) category.
4. On September 21, 2022 the respondent no.4 issued the notification for
counseling, with the time schedule mentioned therein, Annexure P-3 to the
writ petition. On September 27, 2022 the respondent authority issued the seat
matrix for counseling process for the State Quota, Annexure P-4 to the writ
petition.
5. From the said seat matrix the petitioner came to learn that the reservation was
provided in the same for the persons with disabilities in an arbitrary manner,
without there being any consideration for the nature of the stream in the post
graduate courses. No reservation was provided for the persons with disabilities
in the stream Dermatology, whereas same provisions were made for General
Surgery, Gynecology and Obstetrics and other streams. In all these streams the
similarly placed persons suffering from the identical locomotor disabilities got
the opportunity to avail of the reservation but the petitioner opted stream for
Dermatology where such reservation was not provided for.
6. Feeling aggrieved the petitioner made representations dated September 28,
2022 before the respondent authorities, Annexure P-5 to the writ petition. The
petitioner contended that for not providing such reservation for the stream
Dermatology was in violation of the provisions laid down under the Rights of
Persons with Disabilities Act, 2016 (for short, the said Act). The relevant
respondent authorities replied to the said representation of the petitioner and
contended that the necessary reservation was done and provided as per the
roster prepared by the respondent authorities. On request of the petitioner the
petitioner was provided with a copy of West Bengal State Higher Education
Institutions (Reservation in Admissions) Rules, 2013 (for short, the said
2013 Rules), Annexure P-5 to the writ petition and informed the petitioner on
the basis of the same the reservation was provided for.
7. No reservation was provided for the Persons with Disabilities for the stream
Dermatology whereas the same reservation was made for other streams for the
similarly placed candidates as that of the petitioner.
8. Challenging the said action of the respondents the petitioner filed WPA No.
2305 of 2022 (for short, the first writ petition) with the following prayers:-
"(a) Leave may be granted to move the instant application as ex-parte,
dispensing with the requirements under Rule 26 of the Writ Rules;
(b) A Writ of and/or the nature of Mandamus commanding the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
forthwith cancel and/or withdraw and/or set aside and/or rescind the seat
matrix provided for the Post Graduate Degree seats;
(c) A Writ of and/or the nature of Mandamus directing the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
forthwith conduct fresh counseling process by preparing fresh sear matrix by
providing reservation of Persons with disability in the streams of Medicine such
as Dermatology;
(d) A Writ in the nature of Certiorari calling upon the respondents and/or their
men or agents to produce the records of the case before this Hon'ble Court so
that conscionable justice may be done upon perusal of the same;
(e) Rule NISI in terms of prayers (a) to (d) above;
(f) Mandatory Injunction directing the respondent authorities concerned and/or
their men, servants, agents and/or assigns to keep one seat of Dermatology in
the NEET-PG Counseling for the year 2022 vacant till pendency of the writ
petition;
(g) Injunction restraining the respondent authorities concerned and/or their
men, servants, agents and/or assigns from giving any effect to the seat matrix
of first round of counseling;
(h) Ad-interim order in terms of prayers (f) and (g) as above;
(i ) Cost;
(j) And any other order or orders which Your Lordships may deem fit and
proper".
Second Writ Petition WPA 23202 of 2022:-
9. The petitioner duly participated in the All India first Round counseling and
secured a seat on September 30, 2022. In terms of the allotment, the petitioner
had taken admission on October 03, 2022 at Calcutta National Medical
College to pursue his MD in the stream General Medicine. The petitioner
also expressed his willingness to participate in the next round of counseling in
order to upgrade his choice, Annexure P-6 to the second writ petition.
10. The respondents then on October 09, 2022, Annexure P-7 to the second writ
petition, issued a circular whereunder the respondents withdrew the earlier
seat matrix as well as the provisional result of Round 1 counseling and
provided a new time schedule for Round 1 counseling after causing a
modification to the seat matrix and thereby converted the same Management
Quota Seats of a private medical college to State Quota. The said modified
seat matix was published on September 10, 2022, the modification of the seat
matrix is annexed as Annexure P-8 to the second writ petition.
11. Being aggrieved thereby the petitioner filed the second writ petition with the
following prayers:-
"(a) Leave may be granted to move the instant application as ex-parte,
dispensing with the requirements under Rule 26 of the Writ Rules:
(b) A Writ of and/or the nature of Mandamus commanding the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
forthwith cancel and/or withdraw and/or set aside and/or rescind the seat
matrix provided for the Post Graduate Degree seats;
(c) A Writ of and/or the nature of Mandamus directing the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
forthwith conduct fresh counseling process by preparing fresh seat matrix by
providing reservation of Persons with disability in the streams of Medicine such
as Dermatology and by removing the reservation from the subjects like
General Surgery, Orthopedic Surgery, Gynecology and Obstetrics;
(d) A writ in the nature of Certiorari calling upon the respondents and/or their
men or agents to produce the records of the case before this Hon'ble Court so
that conscionable justice may be done upon perusal of the same;
(e) Rule NISI in terms of prayers (a) to (d) above;
(f) Mandatory Injunction directing the respondent authorities concerned and/or
their men, servants, agents and/or assigns to keep one seat of Dermatology in
the NEET-PG Counseling for the year 2022 vacant till pendency of the writ
petition;
(g) Injunction restraining the respondent authorities concerned and/or their
men, servants, agents and/or assigns from giving any effect to the seat matrix
of first round of counseling;
(h) Ad-interim order in terms of prayers (f) and (g) as above;
(i ) Cost;
(j) And any other order or orders which Your Lordships may deem fit and
proper".
Third writ petition- WPA 24186 of 2022:-
12. On October 03, 2022 the concerned All India Authorities issued a notice,
Annexure P-8 to the third writ petition, whereunder the mechanism for giving
up and relinquishing the seat for admission in the post graduation courses was
mentioned and the last date was fixed as October 10, 2022. As the result of
the Round 1 of State counseling was not declared then, the petitioner was not
in a position to relinquish his seat, which he had secured in the central
admission. On October 08, 2022, Annexure P-9 to the writ petition, the
respondent All India Authority issued a notice to the states so as to maintain
the time schedule for the all India counseling and the State counseling.
13. On October 12, 2022 the State authorities published the result for the Round
1. The petitioner failed to secure a seat at its desired stream. On October 15,
2022 the petitioner participated in the Round 2 for the All India counseling
and exercised his option but there was no upgradation, Annexure P-11 to the
third writ petition. On October 17, 2022 the respondent State authorties
provided for the provisions for the surrender of seats in the State Quota,
Annexure P-12 to the third writ petition. On and from October 19, 2022 the
respondents State Authorities initiated the Round 2 State counseling with the
schedule, Annexure P-13 to the third writ petition.
14. On October 25, 2022 the respondent All India Authorities issued a notice,
Annexure P-14 to the third writ petition, providing the time schedule for
counseling for the relevant year as approved by the Hon'ble Supreme Court.
The all India Authorities also published notice indicating the list of admitted
students in All India counseling who could not participate in the subsequent
rounds of counseling, Annexure P-15 to the third writ petition. On November
03, 2022 the State respondent authorities issued notice whereunder
candidates who received admission in the All India counseling were
debarred from participating in the further round of State counseling,
Annexure P-16 to the third writ petition.
15. Being aggrieved with the aforesaid action and decision of the State authorities,
the petitioner filed the third writ petition with the following prayers:-
"(a) Leave may be granted to move the instant application as ex-parte,
dispensing with the requirements under Rule 26 of the Writ Rules;
(b) A Writ of and/or the nature of Mandamus commanding the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
forthwith cancel and/or withdraw and/or set aside and/or rescind the Memo
No. DME/Spl. Corresp/2022/280 dated 03.11.2022 issued by the respondent
state authorities concerned and the notice dated 25.10.2022 issued by the All
India authorities concerned to the extent the same debars the petitioner from
participating in the further rounds of counseling;
(c) A Writ of and/or the nature of Mandamus directing the respondent
authorities concerned and/or their men, servants, agents and/or assigns to
allow the petitioner to resign from his seat at Calcutta Medical College and
participate in the counseling process for the seat of MD (Dermatology) which
has been kept vacant as per the order dated 12.10.2022 of this Hon'ble Court;
(d) A Writ in the nature of Certiorari calling upon the respondents and/or their
men or agents to produce the records of the case before the Hon'ble Court so
that conscionable justice may be done upon perusal of the same;
(e) Rule NISI in terms of prayers (a) to (d) above;
(f) Injunction restraining the respondent authorities concerned and/or their
men, servants, agents and/or assigns from giving any effect to the Memo No.
DME/Spl.Corresp/2022/280 dated 03.11.2022 issued by the respondent State
authorities concerned and the notice dated 25.10.2022 issued by the
respondent All India authorities concerned to the extent the same debars the
petitioner from participating in the further rounds of counseling;
(g) Ad-interim order in terms of prayers (f) as above;
(h) Cost;
(i) And any other order or orders which Your Lordships mau deem fit and
proper".
16. On the said first two writ petitions, an interim order was passed by a
coordinate bench on October 12, 2022 directing the State to keep one State
Quota Seat reserved till the writ petition is decided finally. The said interim
order is still in existence.
17. In the second writ petition, the petitioner filed a supplementary affidavit
affirmed on November 03, 2022 disclosing the All India Seat Matrix for the first
round of counseling, Annexure P-10 thereto. The petitioner also disclosed the
list of successful candidates, Annexure P-13 thereto. The petitioner also
disclosed notice dated November 02, 2022 for Mop-up round of counseling
which would commence from November 04, 2022 and would come to an end on
November 24, 2022, Annexure P-14 thereto.
18. Pursuant to the direction made by this Court on November 11, 2022 the
respondents filed their respective affidavits. The petitioner filed its reply
thereto. The National Medical Commission filed its written note.
Submissions:-
19. Mr. Suman Banerjee learned advocate, lead by Mr. Kallol Basu learned counsel
appearing for the writ petitioner placed reliance upon the various provisions
from the said Act. Relying upon Sections 2(c), 2(h), 3 and 32 of the said Act, he
submitted that, the legislature had promulgated the said Act which came into
force in 2006 and conferred a specific right of reservations of seats for the
candidates suffering from diverse disabilities at the entry level for the Post
Graduation Courses. Mr. Suman Banerjee submitted that, all Government
institutions of Higher Education and other Higher Education Institutions
receiving aid from the Government shall have to reserve 5% seats for the
candidates with bench mark disabilities. He submitted that, this provision
was enacted by the legislature keeping in mind the constitutional rights
guaranteed to a citizen of the country and to ensure such constitutional rights
to be implemented, like various other statutes, the said Act was promulgated.
Mr. Banerjee further submitted that, the provision for reservation as
enumerated under Section 32 of the said Act is a clear mandate to the State.
The State cannot and should not defy from such mandate and is bound by the
same.
20. Referring to the Certificate of Disability for NEET Admissions dated August
23, 2022, Annexure P-2 to the first writ petition, he submitted that, the
petitioner suffered physical disability. The type of disability was termed as
locomotor disability under specified disability category "Seats". The percentage
of disability was found to be 51%. This certificate was prepared upon physical
verification of the petitioner by the medical experts. This certificate according to
the learned counsel for the petitioner, clearly showed that the petitioner being a
physically disabled person with the bench mark disabilities was eligible for the
reservation in terms of the provisions of the said Act and specifically under
Section 32 of the Act when applied for the Entrance Examination for Post
Graduation Medical Courses and opted for the stream "Dermatology" in the
State Quota.
21. Mr. Suman Banerjee Learned Advocate for the petitioner then referred to the
seat matrix which was prepared and published by the respondent authorities
on September 27, 2022, Annexure P-4 to the writ petition and placing reliance
thereupon he submitted that, in diverse stream for the Post Graduation
Medical Courses the necessary reservation was provided for in compliance of
the said Act, whereas in several streams for the Post Graduation Medical
Courses, he pointed out, no provision for reservation was made according to
the said Act. He submitted that one such deviation would appear for the
stream Dermatology which the petitioner opted for. On September 28, 2022
the petitioner made his due representation before the respondent authorities,
Annexure P-5 to the first writ petition. By a communication dated September
29, 2022, part of Annexure P-5, the respondent no.4 dealt with the said
representation and informed the petitioner that no such reservation would be
provided for Dermatology. The respondent authorities relying upon the said
2013 Rules informed the petitioner that, the provisions for reservation in
Dermatology would not be there. The petitioner was also provided with the
necessary roster. Referring to such roster, it was submitted that, there was
several streams where the said mandate for reservation in terms of the said Act
were not followed.
22. Mr. Kallol Basu Learned Counsel for the writ petitioner submitted that, the
statutory mandate under Section 32 read with Sub-sections (c), (h), (o) to
sub-section 2 and Section 3 of the said Act was engrafted in the statute to
uphold a statutory manifestation of a constitutional commitment. Learned
counsel submitted that, at the heart of this case lies the principle of
Reasonable Accommodation. Individual Dignity under grids the said Act
intrinsic to its realization is recognizing the worth of every person as an equal
member of the society. Respect for the dignity of other and foster condition in
which every individual can evolve according to their capacities are key elements
of a legal order which protects, respects and facilitates individual anatomy. The
law does this by imposing a positive obligation on the state to secure the
realization of the rights. But does so by mandating that the state must create
conditions in which the barriers posed by disability can be overcome. The
creation of an appropriate environment in which the disabled can pursue the
full right of entitlements which are encompassed within human liberty is
enforceable at law. Learned counsel further submitted that, the principle of
Reasonable Accommodation acknowledges that if disability is a social
contrast has to be remedied, conditions have to be affirmatively created for
facilitating the development of the disabled. According to him, Reasonable
Accommodation is founded in the norm of inclusion. Exclusion results in the
negation of individual dignity and worth or they can choose the route of
Reasonable Accommodation, where each individual's dignity and worth is
respected. Mr. Basu submitted that, in the specific context of disability, the
principle of Reasonable Accommodation postulates that the conditions which
excludes the disabled from full and effective participation as equal members of
society have to give way to a accommodative society which accepts difference,
respects their needs and facilitates the creation of an environment in which the
social barriers to disability which progressively answered. He then submitted
that, accommodation implies a positive obligation to create conditions
conducive to the growth and fulfillment of the disabled in every aspect of their
existence, whether as students, members of the workplace, participants in
governance or on a personal plane in realizing the fulfilling privacies of family
life. He submitted that, the accommodation which the law mandates is
"Reasonable" because it has to be tailored to the requirement of each
condition of disability. The expectations which every disabled person as are
unique to the nature of the disability and character of the impediments which
are encounter as its consequence. Mr. Basu also submitted that, failure to
meet the individual needs of every disabled person would breach the norm of
Reasonable Accommodation flexibility in answering individual needs and
requirements is essential Reasonable Accommodation. The number contains
an aspiration to meet the needs of the class of persons facing a particular
disability. He further submitted that, Reasonable Accommodation requires
the policy makers to comprehend disability in all its dimensions and to design
measures which are proportionate to needs, inclusive in their reach and
respecting of differences and aspirations. Reasonable Accommodation cannot
be construed in a way that denies to each disabled person the customization
he/she seeks. Even if a disabled person is in class of its own, its need must be
made. In support, Mr. Basu relied upon a decision of the Hon'ble Supreme
Court In the matter of: Vikash Kumar vs. Union Public Service
Commission & Ors., reported at (2021) 5 Supreme Court Cases 370.
23. Learned counsel for the writ petitioner further submitted that, in the event, the
State policy framers act in such a way in framing their policy to make the
rights of the disabled persons a real and meaningful for them the rights
guaranteed under Article 21 of the Constitution of India along with the
fundamental rights shall not be defeated. The Reasonable Accommodation is
the instrumentality which is an obligation of the State policy framers to enable
the disabled to enjoy the constitutional guarantee of equally and non
discrimination. He submitted that, to create a Reasonable Accommodation, it
is the obligation of the State policy framers to undertake the necessary
consultation process depending upon the requirement of disabled individuals
on case to case basis and then to take a decision to frame the necessary policy
for the disabled. He submitted that, in the facts of this case the State had not
undertaken such process of consultation to consider the disability of the
disabled individuals on case to case basis. In absence of such an exercise, he
submitted that, no Reasonable Accommodation could be made for the
disabled as in the instant case, the stream Dermatology, in the Post
Graduation Medical Course Entrance had suffered and the petitioner is a
victim and a discriminated disable person.
24. The learned counsel then submitted that, after second round of counseling for
All India Quota Seats, the students who take admission in All India Quota
seats should not be allowed/permitted to vacate seats, this would ensure that
very few seats are reverted to the State Quota and also All India Quota Seats
are filled by students from the All India Merit List only. The students who take
admission and secure admission in deemed universities pursuant to the
second round of counseling conducted by DGHS should not be eligible to
participate in any other counseling. In support, he relied upon a decision of the
Hon'ble Supreme Court In the matter of: Dar-us-Slam Educational Trust &
Ors. vs. Medical Council of India and Ors., reported at 2017 SCC OnLine
SC 219.
25. The learned counsel for the petitioner drew attention of this Court on the
scheme providing the prevailing norms of counseling mentioned in an order
dated December 16, 2021 passed by the Hon'ble Supreme Court in Special
Leave to Appeal (C) No. 10487/2021; Nihila P.P. vs. The Medical
Counseling Committee (MCC) & Ors. In the matter of: Nihila P.P. (supra),
the Hon'ble Supreme Court had laid down the norms taking into account of the
fact situation prevailing contemporaneously.
26. The learned counsel for the petitioner then submitted that, the petitioner
having secured a seat in the Central Counseling for the stream General
Medicine had already taken admission. There is no embargo upon the
petitioner to join and pursue the said Post Graduation Course. However, he
would opt for the stream Dermatology in the State Quota as a bench mark
disabled candidate, to which he has a statutory right under the said Act and
the State respondent authorities are mandated to provide the said seat to the
petitioner under due reservation policy.
27. Since the seat matrix provided for the Post Graduation Degree seats do not
provide for the reservation in terms of the statute in some of the streams, inter
alia, Dermatology, the petitioner challenged the said seat matrix in the second
writ petition and submitted that it was in gross violation of Article 14 and 21 of
the Constitution of India, as for the similarly placed candidates reservation was
made in other streams. The petitioner then filed the third writ petition
challenging the decision of the respondent authorities dated November 03,
2022 and the notice dated October 25, 2022 issued by the All India Authorities
concerned to the extent that the same debarred the petitioner from
participating in the further round of counseling, since he had secured a seat in
the Central Counseling and did not withdraw himself from the same within the
time stipulated. This according to the petitioner is again violative to the
constitutional mandate by not allowing the petitioner to pursue his
education/higher education.
28. Learned counsel for the petitioner submitted that, the representation of the
petitioner dated September 28, 2022 was dealt with by the respondent
authorities on the purported contention that the necessary reservation was
done and the roster was prepared on which the reservation was provided while
conducting counseling in the West Bengal State Quota in 2022 in terms of the
said 2013 Rules. Mr. Basu learned counsel submitted that, this contention of
the State ex facie showed a clear non application of mind on its part by
proceeding under the said 2013 Rules, when the said Act was already in vogue.
The State, thus, adopted a wrong procedure while providing for reservation for
the disabled candidates on the face of it and thereby acted wholly in an illegal
and wrongful manner. Mr. Basu further submitted that, when an act of State is
done wrongfully and willfully without reasonable or probable cause and not
necessarily an act done from ill-feeling and spite, it is a deliberate act in
disregard of rights of others. It is a malice on power, a legal malice or malice on
law which can be attributed to the State and can never be a case of personal
ill-will or spite on the part of the State. If at all it is malice in legal sense which
could be described as an act, which is taken with an oblique or indirect object.
He submitted that, in the instant case by not reserving the seat for the disabled
in the stream Dermatology, the State had acted with a legal malice. He further
submitted that, such a malice on the part of the State even if, not pleaded in
the writ petition can be considered by the Court from the fact situation of the
case. In support, learned counsel relied upon a judgment of the Hon'ble
Supreme Court In the matter of: G. Jayalal vs. Union of India & Ors.,
reported at (2013) 7 Supreme Court Cases 150.
29. The petitioner submitted that, the State Authorities who were bound by the
said statute to provide for the necessary reservation for the disable candidates,
by not doing so acted grossly in an arbitrary, illegal and wrongful manner. He
submitted that by making provisions for reservation for some streams and by
not making the same reservation for the other streams, the State Authorities
acted in discrimination of its discretion.
30. Mr. Sirsanya Bandyopadhyay, learned junior standing counsel for the State
appearing for respondent nos. 4 and 5 submitted that, the reservation for
Persons with Disabilities (for short, PWD) quota was horizontal which could
be availed of by a candidate belonging to Unreserved, SC, ST, OBCA, OBCD,
EWS (Economically Weaker Sections) etc. and this five percent reserved seats
shall be secured for PWD Candidates. If this reservation is simplified, it should
appear that for every 100 seats their shall be 5 seats reserved i.e. for about
every 20th seat, position, of each cast/category, one seat is reserved for and/or
allocated to PWD Candidates. He submitted that, the experts on the issue who
were engaged by the State as policy framers in this regard had, thus, thought it
fit upon analyzing all the relevant materials and the pros and cons of the
situation, framed the necessary policies that the PWD placement could not be
course wise but cast/category wise manner. The reason, inter alia, behind this
was that in a particular college there may not be all courses or streams but
allocation should be done in such a manner that the statutorily mandated
reservation is made in all possible reservations in an appropriate proportion.
The State policy framers, thus, had undertaken pooled allocation for adopting
fairness in the reservation policy.
31. Learned standing counsel for the State further submitted that, insofar as
Dermatology was concerned there were only 15 nos. of seats available which
were also divided into open and in service category. He submitted that,
probability wise no PWD reserved seat was provided for in the said stream of
Dermatology either in open or in service category. He further submitted that,
likewise there are so many other streams namely MPH Epidemiology-MD-
Geriatrics, MD-Immuno Haematology and Blood Transfusion (IHBT), MD-
Psycratic, MD-Physical Medicine and Rehabilitation and MD-Emergency
Medicines .........etc. He further submitted that, having handful few number of
seats as stated above in the stream Dermatology, there was no reservation
made for PWD. He further submitted that, necessary reservation was made as
per the rules while maintaining the balance, equilibrium and continuity in
reservation, which was again done by the concerned experts policy framers. On
facts and figures the learned junior standing counsel submitted that, for the
relevant year the total nos. of open category seats for which the petitioner
intended to opt for was 533 out of which the reservation made for PWD was for
27 nos. of seats, which was equivalent to 5.06 percentage of the total seats
even more than the lower limit of 5%, as mandated under Section 32 of the Act.
He further submitted that total seats in Dermatology was 15 nos. of which 5%
comes equivalent of 0.75, not even an individual single candidate for the
stream.
32. Questioning the locus standi of the petitioner to maintain this writ petition,
Mr. Bandopadhyay submitted that since the petitioner had already taken
admission in the first round of counseling in the stream of MD-General
Medicine in the Central Quota and till the second round of counseling having
been over already, the petitioner did not surrender the said seat in the stream
of MD-General Medicine and as such pursuant to a Medical Councill of India
Post Graduate Medical Education Regulations, 2000 (for short, the 2000
Rules) and specifically in terms of Regulation 9A(4) thereunder. He was barred
and disqualified to seek any further participation in the State Quota
counseling after the second round. Hence, the petitioner did not have locus to
maintain this writ petition. The said Regulation 9A(4) having a statutory force,
the petitioner was barred thereunder to claim the reservation for PWD Quota
in the State counseling. On this ground alone, he submitted that, the writ
petition should be dismissed.
33. Mr. Bandopadhyay further submitted that, in any event, the petitioner being
disqualified to participate in the state level counseling, the interim order
passed in the writ petition should be vacated otherwise the said one seat in the
stream of Dermatology would be vacated immediately after the counseling
would be over.
34. To distinguish the said judgment cited by Mr. Basu, In the matter of: Vikash
Kumar (supra), Mr. Bandopadhyay referred to the various provisions laid
down under Sub-sections (r), (s), (o), (y) and (t) to Section 2 and Sections 3,
Section 12(3), 16, 32 of the said act and submitted that, two expressions
namely person with "Bench Mark Disasbility" and "Person With Disability"
were defined under Section 2(r) and 2(s) of the Act respectively, which were
totally two independent classes. He submitted that, Section 32 provides for
reservation for persons with "Bench Mark Disabilities" and not for "Persons
with disability". The petitioner in the instant case admittedly a person with
Bench Mark Disability. Referring to paragraph 50 from Vikash Kumar (supra)
Mr. Bandopadhyay submitted that, it is clear from the seeking of the said act
that, "Persons With Disability" and persons with "Bench Mark Disability"
were treated separate categories of individuals having different rights and
protections.
35. Mr. Bandopadhyay further submitted that, the ratio decided In the matter of:
Vikash Kumar (supra) by the Hon'ble Supreme Court in a fact situation which
is different from the fact situation of the instant case and as such the same is
not applicable in the facts of this case.
36. He further submitted that, the writ petitioner had not made out any case of
malice of any nature attached with the decision making process on the part of
the State executive while reserving the quota for PWD and, therefore, this
Court should not take cognizance of the submission on behalf of the petitioner
that malice was on attached the State action. He, therefore, submitted that, the
ratio laid down by the Hon'ble Supreme Court In the matter of: G. Jayalal
(supra) has no application in the facts of this case.
37. Mr. Indranil Roy the learned counsel appearing for the respondent no.6
submitted, at the threshold, placing reliance on the various provisions laid
down under Medical Council of India Post Graduate Medical Education
Regulations, 2000 (amended upto May, 2018) (for short, the said 2000
Regulation) submitted that, this Regulation is a statutory Regulation with a
binding force Regulation 9(4)A of the said 2000 Regulation provided that in
order to prevent seat blocking in common counseling for admission to Post
Graduate Courses and permissibility to exercise fresh choice during
counseling, forfeiture of fee shall be in accordance with the matrix contained in
Appendix III. He submitted that, the petitioner was eligible to take part upto
the second round of counseling for both the Central and State Quota.
Thereafter, since the petitioner had already taken and secured his admission in
the stream MD General Medicine in the Central Quota, he was not eligible to
appear in the Mop-up round at the State counseling in any manner. In the
facts of this case the petitioner was not also eligible to leave his seat in the
Central Quota which he had already secured. He, thus, submitted that, the
petitioner had no locus to maintain this series of writ petitions. He submitted
that, the said Regulation 9A(4) was considered by the Hon'ble Supreme Court
and the Hon'ble Supreme Court had also laid down the law thereupon by
which the petitioner was debarred from taking any part in the State counseling
in the facts of this case. In support, he had relied upon two decisions of the
Hon'ble Supreme Court, which are:
(i) In the matter of: Dar-us-Slam Educational Trust and Others vs.
Medical Council of India and Others, reported at 2017 SCC
OnLine SC 2119.
(ii) In the matter of: Rachit Sinha and Others vs. Union of India and
Others, reported at (2018) 16 Supreme Court Cases 655.
38. Mr. Roy, learned counsel further submitted that, the challenge of the petitioner
in the third writ petition in view of the law laid down In the matter of: Rachit
Sinha (supra) liable to be dismissed.
39. Mr. Roy further referring to pages 265 and 264 from the supplementary
affidavit affirmed by the petitioner on November 03, 2022 submitted that, the
petitioner secured a Rank 1728 whereas at least one candidate was there in
the merit list who was similarly placed with the petitioner with the Rank 1703
with a higher rank, for PWD Quota aspiring for Dermatology in the State
Quota. Therefore, in any event, the petitioner could not and cannot succeed to
his claim even if, for the argument sake, 1 seat is reserved out of 15 seats in
Dermatology. Hence, all these writ petitions are misconceived and liable to be
dismissed. He further submitted that, the interim order passed in the first writ
petition should be vacated immediately otherwise the seat in Dermatology
shall be wasted once the counseling process comes to an end. Drawing
attention to Annexure P-15 to the third writ petition Mr. Roy submitted that,
this notification was in line with the law laid down by the Hon'ble Supreme
Court on interpretation of the relevant, Regulation 9(4) A of the 2000
Regulation.
40. He submitted that the series of writ petitions should be dismissed.
41. Mr. Swapan Kumar data, Learned Senior State Counsel appearing for
Respondent No. 1 to 3 had adopted the submissions made by Mr.
Bandopadhyay.
42. In reply Mr. Kallol Basu, learned counsel for the writ petitioner submitted that,
the law laid down in Dar-hu-Salem (supra) by the Hon'ble Supreme Court, has
no application. The entire process of reservation for PWD quota adopted by the
State was in clear violation of the Principle of Reasonable Accommodation as
laid down in Vikash Kumar (supra). He submitted that, the extent of
consultation required for making such reservation on case to case basis on
assessment of each individual case was not done by the State authority. Such
inaction and/or arbitrary action on the part of the State authorities vitiated the
decision making process of the State policy framers who had framed the policy
for reservation for PWD Quota.
43. This Court has been informed that the mop-up counseling for the State Quota
has commenced and the entire counseling process shall come to an end on
December 02, 2022 as extended by the State.
Decision:-
44. For consideration of the issues involved in this cluster of writ petitions, at the
outset the most relevant provision of the said Act is quoted below:-
"32. Reservation in higher educational institutions.-(1) All Government
institutions of higher education and other higher education institution receiving
aid from the Government shall reserve not less than five per cent, seats for
persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an upper age
relaxation of five years for admission in institutions of higher education".
45. The issue raised by the petitioner that while disposing of its representations
dated September 28, 2022, the respondent authorities dealt with the same and
rejected the claim of the petitioner solely relying upon the 2013 Rules and the
relevant roster thereupon and failed to consider the claim of the petitioner in
the light of the provisions laid down under the said Act, in view of this Court,
the same shall not be required to be dealt with separately. The said issue is
being dealt with in the light of the provisions laid down under the said Act in a
comprehensive manner. More so in view of the paucity of time, that the
selection process would come to an end on December 02, 2022, this writ
petition needs to be finally decided before that.
46. After considering the submissions made on behalf of the parties and upon
perusal of materials on record, it appears to this court that, the entire issue
involved in these three writ petitions will have to be adjudged on the scope,
effect, meaning and interpretation of the provisions laid down under the said
Act. On a plain and literal reading of the said provisions laid down under
Section 32 of the Act, it would appear that a statutory mandate was imposed
upon all Government Institutions of Higher Education and other Higher
Education Institutions receiving aid from the Government to reserve not less
than 5% seats for persons with Bench Mark Disabilities. The later part of the
Section, in view of this Court, is not material for the issues involved in the writ
petitions. The language and expressions used in Section 32 leaves no room for
any ambiguity. The provision is clearly in line and synk with the constitutional
mandate to ensure, to facilitate the development of the disabled with a
Reasonable Accommodation being founded in the norm of inclusion.
47. The cardinal rule of construction of statutes is to read the statute literal by
giving to the words used by the legislature their ordinary, natural and
grammatical meaning. If, however, such a reading leads to absurdity and words
are susceptible of another meaning, the Court may adopt the same. But if no
such alternative construction is possible, the Court must adopt the ordinary
rule of literally interpretation.
48. When upon a plain reading and literal interpretations of the words used in a
statute the legislative intent could be gathered, it is not permissible at all to
add words to the statute, equally, such an interpretation which would make
some terms used in a statute otiose or meaningless has to be avoided.
49. To adjudge the issues involved in these writ petitions in the light of the
provisions of the said Act, this Court is of the firm view that, from a plain and
literal reading of Section 32 of the Act the Government Educational Institutions
as mentioned thereunder are mandated to reserve not less than 5% seats for
persons with Bench Mark Disabilities. There was no further provision made in
Section 32 of the Act specifying the mode and manner in which such
reservation should be made. In absence of directing the mode and manner for
reservation, this Court is of the view that, sufficient discretion is left with such
Government institutions to provide for the reservations in the manner and
mode they would decide, but of course, in a just, fair, reasonable and rational
manner and not in an arbitrary or in colorful exercise of its discretion, subject
to not less than 5% seats for persons with Bench Mark Disabilities.
50. From the materials disclosed on behalf of the respondent nos. 4 and 5 and the
respondent no.6 in the first writ petition, it was clear that the experts were
vested with the power and authority to administer the provisions laid down
under the statute. They should be considered as the master of the rules and
policies framed by them, unless such rules and policies are, ex facie, arbitrary,
unfair, illegal, unreasonable, or attached with malice, such rules and policies
are not open for interference in judicial review by Court in exercising its
jurisdiction under Article 226 of the Constitution of India. For the relevant
year the total numbers of seats were 533 for the Post Graduation Medical
Course at the State Quota, out of which 27 seats equivalent to 5.06% were
already provided for in strict compliance of the reservation mandate in terms of
Section 32 of the Act. The State Government prepared its own roster, the
allotment and reservation of seats in terms of Section 32 of the Act was duly
made following such roster. The State Government being master of its roster
unless, an ex facie, arbitrary and illegal exercise of discretion is found, such a
roster cannot be interfered with. On a close scrutiny on the materials disclosed
on behalf of the respondent no. 4 and 5, it appears to this Court that, following
such roster the necessary reservation was made in terms of Section 32 of the
Act in diverse streams in the Post Graduation Courses. Just because some of
such Post Graduation Streams including the choice of the petitioner, namely,
Dermatology was not provided with such reservation but as a whole the
provisions of the statute having found to be complied with, it cannot be said
that the Government Higher Education Institutions as mentioned under
Section 32 of the Act had acted in an arbitrary and illegal exercise of its
discretion and in violation of the statute.
51. For the proper understanding of the perspective under which the ratio was laid
down In the matter of: Vikash Kumar (supra), some portions from the said
judgment relevant to adjudicate upon these writ petitions are reproduced
below:-
A. Factual background
1. A citizen who suffers from a writer's cramp has travelled to this Court. The
grievance is that he was denied a scribe in the civil services' examination
("CSE"). The case has run its course through the judicial system as an
individual grievance. But its contours present portents of the aspirations of a
whole class of persons whose daily engagement with physical disability
defines their continuing quest for dignity. Through a maze of statutes, rules,
and regulations, the case raises core issues about the actual realisation of
equal opportunity and access to the disabled. It tests what the law professes
with how its ideals are realised. The language of our discourse, as much as its
outcome, should generate introspection over the path which our society has
traversed and the road that lies ahead in realising the rights of the disabled.
Voices such as those of the appellant are a constant reminder of the chasm
between the law and reality. But they also provide a platform for change and
evolution towards a better future.
2. Down to its bare bones, this appeal turns upon the interface of the Civil
Services Examination Rules, 2018 ("the 2018 CSE Rules") dated 7-2-2018 with
the Rights of Persons with Disabilities Act, 2016 ("the 2016 RPwD Act").
3. The appellant has a disability in the form of dysgraphia, commonly known
as a writer's cramp. In August 2016, he graduated with an MBBS degree from
Jawaharlal Nehru Institute of Post Graduate Medical Instruction and Research,
popularly known by the acronym JIPMER. Intending to pursue a career in the
civil services, he appeared in 2017 for the CSE. A scribe was provided to him
by the Union Public Service Commission ("UPSC") to enable him to appear in the
written test. In the online application form for CSE 2017, the appellant declared
himself to be a person with locomotor disability to avail the services of a scribe.
On 7-2-2018, UPSC issued a Notification for the CSE 2018 ("the 2018 CSE
Notification"). The Department of Personnel and Training ("DoPT") issued the
2018 CSE Rules 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; candidates with locomotor disability
and cerebral palsy where the "dominant (writing) is affected to the extent of
slowing the performance of function (minimum of 40% 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.
4. In his online application for the CSE 2018, the appellant declared himself
to be a person with a benchmark disability of 40% or more. By his email dated
28-2-2018, the appellant requested UPSC to provide him with a scribe for the
examination. UPSC, by its Letter dated 15-3-2018, 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 40%
and the appellant did not meet this criterion.
5. The appellant also sought to appear for selection to the post of Medical
Officer pursuant to the Combined Medical Services Examination, 2017
conducted under the auspices of UPSC. In order to obtain a disability certificate,
he approached the Medical Board of Ram Manohar Lohia Hospital, Delhi. By a
communication dated 12-2-2018, the disability certificate was denied to him.
This led the appellant to preface a challenge before the Central Administrative
Tribunal ("the Tribunal") where the case is still pending adjudication.
B. The course run : The Tribunal and the High Court of Delhi
6. Aggrieved by the denial of the services of a scribe for the CSE 2018, the
appellant moved the Tribunal. By an interim order dated 30-5-2018 [Vikash
Kumar v. UPSC, 2018 SCC OnLine CAT 28615] , the Tribunal directed UPSC to
provide him a scribe to enable him to appear for the preliminary examination.
The results were published on 14-7-2018, but the appellant's result was
withheld. By a judgment dated 7-8-2018 [Vikash Kumar v. UPSC, 2018 SCC
OnLine CAT 28614] , the Tribunal dismissed the application filed by the
appellant on the ground that, since Ram Manohar Lohia Hospital had refused
to issue a disability certificate, the appellant could not claim access to a scribe
as a disabled candidate. The Tribunal also noted that the appellant did not
claim the facility of a scribe in the CSE 2017 or during his MBBS graduation
examinations. The Tribunal held that though in Para 5 of the 2018 CSE
Notification, UPSC recognised the right to a scribe, it has been limited to blind
candidates and candidates having locomotor disability and cerebral palsy,
where a minimum 40% impairment exists. The appellant was held not to fulfil
the criteria. The Tribunal also rejected a certificate dated 22-3-2015 issued by
the National Institute of Mental Health and Neuro Sciences, on the ground that
it failed to mention the extent of the disability. Finally, the Tribunal questioned
the maintainability of the prayer of the appellant for a direction to UPSC to
amend the 2018 CSE Notification. Since the relief was in the realm of advising
the executive on policy matters, the Tribunal refrained from interfering in the
matter.
7. The appellant instituted a writ petition before the High Court of Delhi and
challenged the legality of the 2018 CSE Rules. Meanwhile, he obtained a
medical certificate dated 27-8-2018 from National Institute of Mental Health
and Neuro Sciences (NIMHANS), Bangalore, declaring that he has a writer's
cramp and would require a scribe during his examinations.
8. A Division Bench of the High Court of Delhi by an order dated 25-9-2018
[Vikash Kumar v. UPSC, 2018 SCC OnLine Del 13365] 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 2018 CSE Rules to provide scribes to candidates with
specific disabilities was rendered otiose. The appellant was granted liberty to
file another application before the Tribunal in the future. This order [Vikash
Kumar v. UPSC, 2018 SCC OnLine Del 13365] of the High Court of Delhi has
been challenged in appeal.
C. These proceedings
9. During the course of the proceedings, by an order dated 16-1-2020 [Vikash
Kumar v. UPSC, 2020 SCC OnLine SC 1119] , we directed All India Institute of
Medical Sciences ("AIIMS") to constitute a medical board to evaluate the
condition of the appellant and render its opinion on (i) whether he suffers from a
benchmark disability within the meaning of Section 2(r) and Section 2(zc) of the
2016 RPwD Act; and (ii) whether he is a "person with disability" under Section
2(s) of the 2016 RPwD Act and the extent of the disability. AIIMS, by its report
dated 10-2-2020, opined that the appellant suffers from a "chronic neurological
condition" termed as bilateral writer's cramp. However, the report opines that
while he does not suffer from a "benchmark disability", the appellant is a
"person with disability" under the 2016 RPwD Act. The extent of the disability
is assessed at 6%.
10.3. The 2018 CSE Rules and the 2018 CSE Notification are in violation of
Section 20 of the 2016 RPwD Act. Under Section 20, every government
establishment is required to provide "reasonable accommodation" and a
conducive environment to employees with disability. "Reasonable
accommodation" as defined in Section 2(y) means necessary and appropriate
modifications and adjustments to ensure that persons with disabilities enjoy
their rights equally with others. The provision of scribes and compensatory time
during the examination to candidates such as the appellant are reasonable
accommodations necessary to be provided under the 2016 RPwD Act.
10.4. The 2018 CSE Rules and the 2018 CSE Notification violate Article 14
and Article 16(1) of the Constitution and the 2016 RPwD Act as they provide for
scribes only for candidates who are blind, those suffering from locomotor
disability or cerebral palsy. In the 2018 CSE Rules, applications are invited
from all persons with disabilities and age relaxation is also provided to them,
including for those suffering from learning disabilities. However, the provision
of scribes is limited to a few candidates.
10.5. The 2018 CSE Rules fail to recognise that persons such as the appellant
with a writer's cramp have difficulty in writing in their own hand and thus,
should be granted a similar facility of a scribe.
11.1. The issue relating to the entitlement of the appellant for the facility of a
scribe for writing the CSE 2018 is governed by the rules framed by the DoPT.
According to the 2018 CSE Rules, persons with benchmark disabilities are
provided with the facility of a scribe, if desired. In case of persons with a
benchmark disability, the facility of a scribe is provided on the production of a
certificate issued by a Chief Medical Officer of a government healthcare
institution to the effect that person concerned has a physical limitation to write
and a scribe is essential to write the examination on the candidate's behalf.
11.3. The appellant has failed to challenge the legality of the 2018 CSE Rules
and has only made claims under Section 20 of the 2016 RPwD Act.
12.2. Writer's cramp is not specifically included in the list of specified
disabilities in the Schedule of the 2016 RPwD Act. Thus, the guidelines dated
29-8-2018 are not applicable to persons suffering from writer's cramp.
However, many such medical conditions which may hamper writing ability
have not been identified as disabilities. In these instances, the examining body
has to consider the cases of such candidates and whether facilities of scribes
and compensatory time is to be granted.
26. The important point to note is that the guidelines of the MSJE dated 29-8-
2018 recognise the entitlement to a scribe only for candidates with benchmark
disabilities. Among them, candidates belonging to three categories--the blind
and those with locomotor disability or cerebral palsy--are to be given the
facility if so desired. In the case of candidates with other benchmark
disabilities, such a facility is to be extended upon a certificate which is issued
in terms as noted above.
F. Benchmark disability not a precondition to obtaining a scribe
34. It is in this backdrop that the Court must resolve the issue, bearing as it
does on the rights of similarly situated candidates. The 2016 RPwD Act
embodies two distinct concepts when it speaks of : (i) "persons with benchmark
disabilities", and (ii) persons with disability. In defining a person with
benchmark disability, Section 2(r) encompasses two categories : (i) a person
with not less than 40 per cent of a specified disability, where the specified
disability has not been defined in measurable terms, and (ii) a person with
disability where the specified disability has been defined in measurable terms,
as certified by the certifying authority. In other words, Section 2(r) encompasses
both a situation where a specified disability has not been defined in
measurable terms, in which event it means a person with not less than 40 per
cent of the specified disability but also where a specified disability has been
defined in measurable terms. A certification by the certifying authority is
contemplated in regard to whether the person concerned does in fact meet the
specified norm as quantified.
35. The second concept which is embodied in Section 2(s) is that of a person
with disability. Section 2(s) unlike Section 2(r) is not tagged either with the
notion of a specified disability or a benchmark disability as defined in Section
2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean
a person with a long term physical, mental, intellectual or sensory impairment
which in interaction with various barriers hinders full and effective participation
in society equally with others.
40. Conflating the rights and entitlements which inhere in persons with
disabilities with the notion of benchmark disabilities does disservice to the
salutary purpose underlying the enactment of the 2016 RPwD Act. Worse still,
to deny the rights and entitlements recognised for persons with disabilities on
the ground that they do not fulfil a benchmark disability would be plainly ultra
vires the 2016 RPwD Act.
45. The 2016 RPwD Act was a landmark legislation which repealed the 1995
Act and brought Indian legislation on disability in line with the United Nations
Convention on the Rights of Persons with Disabilities ("UNCRPD"). Under the old
regime, disability was simply characterised as a medical condition devoid of
any understanding of how disability is produced by social structures that cater
to able-bodied persons and hamper and deny equal participation of persons
with disabilities in the society. Section 2(t) of the 1995 Act defined a "person
with disability" in the following terms:
"2. (t) "person with disability" means a person suffering from not
less than forty per cent of any disability as certified by a medical
authority;"
50. It is clear from the scheme of the 2016 RPwD Act that "person with
disability" and "person with benchmark disability" are treated as
separate categories of individuals having different rights and protections.
A third category of individuals "persons with disability having high
support needs" has also been defined under the 2016 RPwD Act.
62. The principle of reasonable accommodation acknowledges that if
disability as a social construct has to be remedied, conditions have to be
affirmatively created for facilitating the development of the disabled.
Reasonable accommodation is founded in the norm of inclusion. Exclusion
results in the negation of individual dignity and worth or they can choose the
route of reasonable accommodation, where each individuals' dignity and worth
is respected. Under this route, the "powerful and the majority adapt their own
rules and practices, within the limits of reason and short of undue hardship, to
permit realisation of these ends". [ Reasonable Accommodation in A
Multicultural Society, Address to the Canadian Bar Association Continuing
Legal Education Committee and the National Constitutional and Human Rights
Law Section, 7-4-1995, Calgary, Alberta at 1.]
65. Failure to meet the individual needs of every disabled person will breach
the norm of reasonable accommodation. Flexibility in answering individual
needs and requirements is essential to reasonable accommodation. The
principle contains an aspiration to meet the needs of the class of persons facing
a particular disability. Going beyond the needs of the class, the specific
requirement of individuals who belong to the class must also be accommodated.
The principle of reasonable accommodation must also account for the fact that
disability based discrimination is intersectional in nature. The intersectional
features arise in particular contexts due to the presence of multiple disabilities
and multiple consequences arising from disability. Disability therefore cannot
be truly understood by regarding it as unidimensional. Reasonable
accommodation requires the policy-makers to comprehend disability in all its
dimensions and to design measures which are proportionate to needs, inclusive
in their reach and respecting of differences and aspirations. Reasonable
accommodation cannot be construed in a way that denies to each disabled
person the customisation she seeks. Even if she is in a class of her own, her
needs must be met. [ Amita Dhanda, Prof. of Law, NALSAR, "In a class of my
own : Reasonable accommodation from a disability perspective" [ppt
presentation].] While assessing the reasonableness of an accommodation,
regard must also be had to the benefit that the accommodation can have, not
just for the disabled person concerned, but also for other disabled people
similarly placed in future.
67. The concept of reasonable accommodation as a component of the equality
guarantee has been recognised in a consistent line of precedents of this Court.
[Rajive Raturi v. Union of India, (2018) 2 SCC 413 : (2018) 1 SCC (L&S)
404; Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 : (2016) 3 SCC (Civ)
551 and Disabled Rights Group v. Union of India, (2018) 2 SCC 397 : (2018) 1
SCC (L&S) 391] Illustratively, in Syed Bashir-ud-din Qadri v. Nazir Ahmed
Shah [Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah, (2010) 3 SCC 603 :
(2010) 1 SCC (L&S) 874] , this Court, speaking through Altamas Kabir, J. held
that a person having cerebral palsy should be given access to an external
electronic aid as a reasonable accommodation to offset the impact of his
inability to write on the blackboard. The Court held as follows : (SCC p. 614,
para 52)
"52. ... while a person suffering from cerebral palsy may not be able to
write on a blackboard, an electronic external aid could be provided which
could eliminate the need for drawing a diagram and the same could be
substituted by a picture on a screen, which could be projected with
minimum effort."
69. A two-Judge Bench of this Court held that a judicial officer in a State has
to possess reasonable limit of the faculties of hearing, sight and speech in order
to hear cases and write judgments and, therefore, stipulating a limit of 50%
disability in hearing impairment or visual impairment as a condition to be
eligible for the post is a legitimate restriction. This Court affirmed the
submission of the Madras High Court that seeking to address the socially
constructed barriers faced by a visually or hearing impaired Judge, whose
disability exceeds 50%, would create "avoidable complications". As a result, the
impugned ceiling was found to be valid. The relevant portion of the judgment is
excerpted below : (V. Surendra Mohan case [V. Surendra Mohan v. State of
T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] , p. 257, para 45)
"45. ... The High Court in its additional statement has encapsulated the
functions and duties of the Civil Judge in the following words:
'7. ... Impaired vision can only make it extremely difficult, even
impossible, to perform any of these functions at all. ... Therefore, creating
any reservation in appointment for those with disabilities beyond the 50%
level is far from advisable as it may create practical and seemingly other
avoidable complications. Moreover, given the need to prepare judgments
based on the case papers and other material records in a confidential
manner, the assistance of a scribe or the like completely takes away the
secrecy and discreetness that come with the demands of the post.' "
75. Second, and relatedly, this being so, it can be no answer to tell a disabled
candidate whose disability genuinely necessitates access to a scribe that they
are already being given all the above facilities. Providing those facilities does
not absolve the State of the obligation to provide a disabled candidate access to
a scribe, when this need is clearly established as being relatable to their
disability.
81. When competent persons with disabilities are unable to realise their full
potential due to the barriers posed in their path, our society suffers, as much, if
not more, as do the disabled people involved. In their blooming and blossoming,
we all bloom and blossom. The most significant loser as a consequence of
UPSC's rigid approach in this case (of refusing to provide scribes to those not
having benchmark disabilities) is UPSC itself. For it is denying to the nation the
opportunity to be served by highly competent people who claim nothing but
access to equal opportunity and a barrier-free environment.
K. Realising the transformative potential of the Rights of Persons with
Disabilities Act, 2016 : From principle to practice
87. In the hearing, one of us presciently noted that the imposition of the
criterion of a benchmark disability to access a scribe--an arena in which it has
no relevance as per the statutory framework--betrays a profound lack of
awareness on the part of the authorities about the 2016 RPwD Act. The OM of
29-8-2018, in its preambular portion recites as follows:
"The Act [Rights of Persons with Disabilities Act, 2016] provides for
reservation in government jobs for persons with benchmark disabilities as
defined under Section 2(r) of the said Act."
L. Case of the appellant
90. Insofar as the case of the appellant is 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 [Vikash Kumar v. UPSC,
2020 SCC OnLine SC 1119] of this Court is clear in opining that the appellant
has a specified disability inasmuch as he has a chronic neurological condition.
This condition forms part of Entry IV of the Schedule to the 2016 RPwD Act. The
writer's cramp has been found successively to be a condition which the
appellant has, making it difficult for him to write a conventional examination.
To deny the facility of a scribe in a situation such as the present would negate
the valuable rights and entitlements which are recognized by the 2016 RPwD
Act".
52. The appellant In the matter of: Vikash Kumar (supra) had a disability
commonly known as Writer's Cramp. In the relevant UPSC Examination he
was not allowed to avail of the help of a Scribe. The appellant claimed that
with the nature of disability he should have been allowed to take the help of
scribe. In that backdrop and perspective the issue went before the Hon'ble
Supreme Court. Writer's Cramp was not specifically included in the list of
specified disabilities under the schedule of the said Act and the relevant
guidelines of MSJE dated October 29, 2018 recognized the entitlement to a
scribe for the candidates with Bench Mark Disabilities. The 2018 CSE Rules
and the CSE Notification was violaive to Article 14 and Article 16(1) of the
Constitution and the said act as they provided for scribes only for candidates
who were blind, those suffering from locomotor disability and cerebral palsy. In
the 2018 CSE Rules applications were invited from all persons with disabilities
and age relaxation was also provided to them including for those suffering from
learning disabilities. However, the provision of scribes was limited to a few
candidates. The 2018 CSE Rules failed to recognize that person with
writer's cramp having difficulty in writing in their own hand and, thus,
the appellant claimed that such persons with writer's cramp with
difficulty in writing in their own hand and, thus, should be granted a
similar facility of a scribe. The reservation for the PWD Quota in terms of
Section 32 of the Act was never the issue before the Hon'ble Supreme
Court.
53. Inasmuch as, from the facts and figures disclosed by the respondent no.4 and
5 and the respondent no. 6, it appears that if in all the Post Graduation
Streams, the reservation following Section 32 of the Act is provided for, then
such reservation would amount to a figure which would be far beyond and
higher than the reasonable and rational assessment of the reading of the
provisions under Section 32 of the Act. It is true that Section 32 of the Act did
not specify any upper limit for the reservation in terms thereof but it is equally
true that, the reservation in terms of the said provision should not reach such
a State that it would amount to encroachment of seats which are ear marked
either for the general category or reserved for other categories. In such a case it
would amount to a clear violation of the constitutional mandate of equality and
the doctrine of proportionality. In that case the interpretation of Section 32 of
the Act would become an absurd proposition. While exercising the powers of
judicial review, the limited areas in which the Court can enquire are as to
whether in taking a decision, the authority has exceeded its power and
committed any error of law. The Court can examine as to whether an authority
has reached to a decision in a reasonable, just, lawful and in proper exercise of
its discretion without abusing its power. It is not for the Court to determine
whether a particular policy or a particular decision taken in the fulfillment of
that policy is fair. The Court will examine as to whether the decision of an
authority is vitiated by illegality, irrationality or procedural impropriety and
arbitrariness. While examining the question of arbitrariness or irrationality, the
Court will be guided by the principle as to whether the decision of the authority
is such, that no authority properly directing itself on the relevant law and
acting reasonably would have reached it.
54. In the matter of: Vikash Kumar (supra), the Hon'ble Supreme Court had
observed that the provisions laid down under the said Act were in sync with the
provisions laid down under the Constitution with regard to the rights of the
Physically disabled citizen to the extent discussed therein. On a reading of the
ratio laid down in the said judgment, it was clear that the statutory mandate
for reservation under the said Act was a mandatory requirement to be complied
with and followed by all the Government Institutions of Higher Education, as
the subject course, in the facts of this case. The case of the writ petitioner
was not that such mandate had not been followed. The writ petitioner
following the reservation guidelines under Section 32 of the Act wanted
that similar reservation has to be followed in each and every stream of the
Post Graduate Medical Courses, like, Dermatology, into which the
petitioner was interested to get an admission. The contention of the writ
petitioner, in the opinion of this Court, is totally misconceived.
55. For the reasons stated above, both the said first and second writ petitions are
devoid of any merit and should be dismissed.
56. The various provisions laid down under Medical Council of India Post
Graduate Medical Education Regulations, 2000 (amended up to May,
2018) (for short, the said 2000 Regulation) are statutory Regulation with a
binding fore. Regulation 9A(4) of the said 2000 Regulation provided that in
order to prevent seat blocking in common counseling for admission to Post
Graduate Courses and permissibility to exercise fresh choice during
counseling, forfeiture of fee shall be in accordance with the matrix contained in
Appendix III. The relevant extract from the said Regulation in this regard is
quoted below:-
"1. All India Quota Seas remaining vacant after last date for joining, i.e. 10th
May will be deemed to be converted into State Quota.
2. Institute/College/Courses permitted after 28th February will not be
considered for admission/allotment of seats for current academic year.
3. In any circumstances, last date for admission/joining will not be extended
after 31st May.
4. For the purpose of ensuring faithful obedience to the above time-schedule,
Saturday, Sunday or Holidays (except National Holiday) shall be treated as
working day.
5. The following Matrix shall be applicable with regard to permissibility to
students to exercise fresh choice during counseling:-
Round Free Exit Exit with Ineligible for Amount of
forfeiture of further registration fee
fees counseling
AIQ ✓
I/Deemed
AIQ If not joined If joined Government-
II/Deemed Rs.25,000 (half
for
SC/ST/OBC)
Deemed-
Rs.2,00,000
State Quota I ✓
State Quota II If not joined If joined Government-
Rs.25,000 (half
for
SC/ST/OBC)
Private-Rs.
2,00,000
State Quota ✓
Mop-Up
Deemed ✓
Mop-Up
57. From a plain reading of the above provisions it is clear that if a candidate, as
the petitioner herein has already joined in a course and occupied a seat under
the All India Quota, then in the Mop up round of State Quota Counseling
such a candidate would be ineligible. In the facts in the instant case, the
petitioner admittedly had joined and secured an admission in the All India
Quota for the stream General Medicine and, therefore, by operation of the said
Regulation the petitioner is now ineligible for the Mop up counseling in the
State Quota any further. The ineligibility of the petitioner to participate for
further counseling in the Mop up round of State Quota at present is barred by
operation of statutory Regulation.
58. In the matter of: Rachit Sinha & Ors. (supra), the Hon'ble Supreme Court
had observed as under:-
"3. On 5-4-2018, a Notification was issued by the Medical Council of India by
which Regulation 9-A(4) was added to the Postgraduate Medical Education
Regulations, 2000 which is in the following terms:
"9-A. (4) In order to prevent seat blocking in common counselling for
admission to postgraduate courses and permissibility to exercise fresh
choice during Counselling, forfeiture of fee shall be in accordance with the
matrix contained in Appendix III."
9. It is clear from the record that the Medical Council of India decided to make
certain changes to the method of admissions to the postgraduate courses to
arrest the blocking of seats by certain candidates which was detrimental to the
interest of meritorious candidates in the All-India quota. There is material on
record to suggest that devious methods were adopted by certain candidates to
block the seats in the All-India quota and resign thereafter from those seats
later which resulted in reversion of the All-India quota seats to the State quota.
The Medical Counselling Committee identified about thousand candidates who
were indulging in such illegal practice and proposes to take action against them
after a thorough inquiry.
10. There is no infringement of any legal right of the petitioners in the change
of the method of counselling made by the notice dated 9-4-2018. Reduction of
chances of admission does not entail in violation of any right. If the change in
the method of counselling was due to the circumstances mentioned above, we
see no reason to interfere. Further, the petitioners have participated in the
second round of counselling for upgradation. We are informed that the second
round of counselling for All-India quota is completed. No interference is
warranted at this stage in respect of the All-India quota.
11. In view of the completion of the second round of counselling of the All-India
quota, we see no reason to entertain the writ petitions. The order dated 20-4-
2018 [Rachit Sinha v. Union of India, 2018 SCC OnLine SC 714, wherein it
was directed:"Having heard the learned counsel appearing for the parties, we
consider it appropriate to direct that until further orders, the petitioner students
should be allowed to retain their seats allotted to them in the first round of
counselling for admission to the post-graduate medical courses. We order
accordingly. Also, there shall be stay of reversion of the seats by the Central
Government to the State Government(s) until further orders. List these matters
on 27-4-2018 for further hearing. In the meantime, the respondents may file
their respective reply-affidavit, if any.] , staying the reversion of seats from the
All-India quota to the State quota is vacated. According to the schedule for
online counselling, the second round of counselling of the State quota should be
completed by 26-4-2018. The second round of State Counselling has to be
conducted after taking into account the reverted seats on completion of the
second round of the All-India quota. We are informed that some States and
Deemed/Central institutions completed the second round of counselling without
waiting for the reversion of the unfilled seats in the second round of counselling
of the All-India quota. As this could not have been done, we direct that such
States shall conduct the second round of counselling again after reversion of
the unfilled seats in the second round of counselling of the All-India quota. As
we have vacated the order dated 20-4-2018 [Rachit Sinha v. Union of India,
2018 SCC OnLine SC 714, wherein it was directed:"Having heard the learned
counsel appearing for the parties, we consider it appropriate to direct that until
further orders, the petitioner students should be allowed to retain their seats
allotted to them in the first round of counselling for admission to the post-
graduate medical courses. We order accordingly. Also, there shall be stay of
reversion of the seats by the Central Government to the State Government(s)
until further orders. List these matters on 27-4-2018 for further hearing. In the
meantime, the respondents may file their respective reply-affidavit, if any.] , the
authority concerned will report the unfilled seats in the second round of the All-
India Counselling to the respective States by 5-5-2018. The second round of
counselling for the State quota shall be conducted and completed by 10-5-2018.
The mop-up round for the State quota which is scheduled to be completed by 8-
5-2018 is extended to 15-5-2018".
59. In the instant writ petition the writ petitioner challenged the decision of the
State policy makers by not providing for reservation for PWD Quota in
Dermatology. It was never the case of the petitioner that, overall, State had
not reserved atleast 5% seats for person with Bench Mark Disabilities in the
Post Graduation Medical Courses in terms of Section 32 of the Act. From the
ratio laid down by the Hon'ble Supreme Court In the matter of: Vikash
Kumar (supra) it would not appear that any mandate was laid down upon the
educational institutions regarding the manner, mode and prescription as to
how such reservation should be made. The petitioner has also not alleged
malice on power or malice on exercise of its discretion by the State authority in
not providing for any reservation for any PWD Quota in the Stream
Dermatology.
60. In view of the above discussions and reasons, this Court is also of the
considered view that this restrictions imposed by the Director General of
Health Services Medical Counseling Committee, Government of India which is
the subject matter of the said third writ petition were also not unreasonable or
arbitrary restrictions. The said third writ petition is also devoid of any merit.
61. In view of the above, the first writ petition, WPA No. 2305 of 2022 stands
dismissed.
62. Consequently, the second writ petition WPA No. 23202 of 2022 stands
dismissed.
63. The third writ petition WPA No. 24186 of 2022 also stands dismissed.
64. The interim order passed in the first two writ petitions namely WPA No.
23056 of 2022 and WPA No. 23203 of 2022 dated October 12, 2022 stands
vacated.
65. In view of the above discussions, this Court thought it fit that, to decide the
issues in these writ petitions the rest of the judgments relied upon on behalf of
the petitioner were not required to be dealt with further.
66. There shall, however, be no order as to costs.
67. A copy of this judgment is directed to be kept in the file of each of the writ
petitions.
(Aniruddha Roy, J.)
