Summary
In a writ petition by a candidate with 25% permanent disability (writer's cramp) who was denied a scribe and compensatory time in recruitment examinations because these were confined to persons with benchmark disabilities, the Supreme Court held that all examination facilities given to persons with benchmark disabilities, other than reservation, must be extended to all persons with disabilities under the RPwD Act, 2016. It rejected the plea that the examining body was not amenable to writ jurisdiction and directed the Union Ministry to revise and re-notify its Office Memorandum dated 10.08.2022 within two months, with specified safeguards.
Issues
- Whether facilities such as a scribe and compensatory time in written examinations can be restricted to persons with benchmark disabilities, to the exclusion of other persons with disabilities under Section 2(s) of the RPwD Act, 2016.
- Whether the Institute of Banking Personnel Selection, a registered society and public trust, could resist the writ petition on the ground that it is not 'State' under Article 12.
- Whether the Office Memorandum dated 10.08.2022 adequately implemented the principle of reasonable accommodation, and what directions were required.
Provisions considered
- Sections 2(r) and 2(s), Rights of Persons with Disabilities Act, 2016Section 2(s) defines a person with disability broadly, while Section 2(r) defines a person with benchmark disability as one with not less than 40% of a specified disability. Following Vikash Kumar and Avni Prakash, the Court treated benchmark disability as relevant mainly to reservation and held that examination facilities cannot be confined to persons with benchmark disabilities. (¶¶ 8, 9, 10, 13, 14)
- Sections 2(h) and 2(y), Rights of Persons with Disabilities Act, 2016Discrimination includes denial of reasonable accommodation, and reasonable accommodation means necessary and appropriate modification without disproportionate or undue burden. The Court held that denying a scribe or compensatory time to a person with disability amounts to discrimination under the Act. (¶¶ 8, 9, 10)
- Sections 2(m), 16, 17(i) and 18, Rights of Persons with Disabilities Act, 2016These provisions on inclusive education, reasonable accommodation in educational institutions, modification of the examination system (extra time, scribe) and adult education were read, as in Vikash Kumar and Avni Prakash, as extending to students and adults with disabilities generally and not only to those with benchmark disabilities. (¶¶ 8, 9, 10)
- Paragraph 3 (guidelines for persons with less than 40% disability having difficulty in writing), Office Memorandum F.No.29-6/2019-DD-III dated 10.08.2022, Department of Empowerment of Persons with DisabilitiesIssued pursuant to Vikash Kumar, the OM grants scribe and compensatory time only to persons with difficulty in writing and does not extend all facilities in the 2018 OM for benchmark disabilities. Finding defects and non-uniform implementation, including no grievance mechanism, the Court directed that it be revisited, its restrictions removed and re-notified. (¶¶ 13, 14, 15, 17, 19)
- Articles 12, 19, 21 and 32, Constitution of IndiaRelying on the Constitution Bench decision in Kaushal Kishor that rights under Articles 19 and 21 can be enforced against private entities, the Court rejected the examining body's contention that it was not amenable to writ jurisdiction, adding that the OM applies to all authorities. (¶¶ 6.1.1, 18)
Held
- All benefits extended to candidates with benchmark disabilities in writing examinations, such as a scribe and compensatory time, must also be extended to candidates with disabilities under Section 2(s) of the RPwD Act, 2016; no distinction may be drawn between the two except in reservation. (¶¶ 10, 13, 19)
- The principle of reasonable accommodation is central to equality for persons with disabilities, and denial of a scribe or compensatory time constitutes discrimination under the RPwD Act, 2016. (¶¶ 10, 12)
- Though the reliefs sought for specific 2022 examinations had been overtaken by time (the petitioner having been given a scribe under the interim order), the Court examined the issue given its nature, to settle the position for persons with disabilities. (¶¶ 2, 2.1, 3)
- The examining body's plea that it is not 'State' and not amenable to writ jurisdiction could not be accepted in view of Kaushal Kishor; statutory benefits for persons with disabilities cannot be denied on the ground of lack of accountability or enforceability. (¶ 18)
- Because of defects in the OM dated 10.08.2022 and disparate implementation by examining bodies, a uniform memorandum for all persons with disabilities was needed. The Ministry was directed to revise and re-notify the OM within two months, providing among other things for uniform compliance, a grievance redressal portal, longer validity of scribe certificates, scribe incentives and training, time to familiarise with the scribe, a choice of examination modes (scribe, Braille, large print, audio), penal action for non-compliance, and sensitisation of staff. (¶¶ 15, 17, 19)
Result
Writ petition disposed of with directions to the Ministry of Social Justice and Empowerment to revise and re-notify the Office Memorandum dated 10.08.2022 within two months; no costs; matter to be listed after two months for reporting compliance.