IN RE: RECRUITMENT OF VISUALLY IMPAIRED IN JUDICIAL SERVICES versus

Summary

In suo motu proceedings and connected matters on recruitment of persons with disabilities to the district judiciary in Madhya Pradesh and Rajasthan, the Court held that visually impaired candidates cannot be regarded as 'not suitable' for judicial service, struck down Rule 6A of the Madhya Pradesh Judicial Service Rules, 1994 insofar as it excludes visually impaired and low-vision candidates, struck down the proviso to Rule 7 (three years' practice or 70% in the first attempt) for candidates with disabilities as indirect discrimination, held that relaxation of minimum cut-off marks for such candidates is permissible under the existing power to relax and the DoPT Office Memorandum, directed separate cut-offs and merit lists for the disability category at every stage, and held that persons with disabilities and persons with benchmark disabilities cannot be distinguished for these purposes.

Issues

1. Whether visually impaired candidates can be said to be 'not suitable' for judicial service.
2. Whether the amendment to Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994, confining disability reservation to locomotor and allied disabilities, falls foul of the Constitution.
3. Whether the proviso to Rule 7 of the Madhya Pradesh Judicial Service Rules, 1994, requiring three years' practice or 70% aggregate in the first attempt, violates the equality doctrine and the principle of reasonable accommodation in its application to candidates with disabilities.
4. Whether relaxation of minimum qualifying (cut-off) marks, including in the interview, can be granted to candidates with disabilities when enough such candidates are not available after selection in their respective categories.
5. Whether a separate cut-off and merit list must be maintained for candidates with disabilities at every stage of judicial service examinations.
6. Whether any distinction can be drawn between persons with disabilities and persons with benchmark disabilities in respect of these rights and entitlements.

Provisions considered

• Sections 2(h), 2(r), 2(s), 2(y) and 3, Rights of Persons with Disabilities Act, 2016The definitions of discrimination (which includes denial of reasonable accommodation), person with disability, person with benchmark disability and reasonable accommodation, and the guarantee of equality and non-discrimination in Section 3, were treated as operationalising the constitutional promise of inclusion. The Court described the Act as a 'super statute' of quasi-constitutional significance and held that suitability must be assessed after providing reasonable accommodation, not by clinical assessment. (¶¶ 35, 36, 39, 41, 42, 64, 67)
• Sections 20, 33 and 34, Rights of Persons with Disabilities Act, 2016Section 20 prohibits discrimination in government employment and mandates reasonable accommodation; Sections 33 and 34 require identification of posts and reservation of not less than 4% of vacancies, with 1% each for blindness and low vision, deaf and hard of hearing, locomotor disability, and 1% for the remaining categories. The Court treated these provisions as indicating that the State has undertaken an obligation of protection for persons with disabilities akin to that under Articles 15 and 16, and tested Rule 6A against them. (¶¶ 12, 35, 39, 42)
• Rule 6A (as amended on 23.06.2023), Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994The amended rule reserved 6% of posts only for locomotor disability (including leprosy cured, dwarfism, muscular dystrophy and acid attack victims), excluding visually impaired and low-vision candidates, on the strength of a medical opinion of the Dean of a medical college and an exemption under the second proviso to Section 34(1). The Court held the rule, based merely on clinical assessment and innocent of reasonable accommodation, falls foul of the Constitution and struck it down to the extent it excludes visually impaired and low-vision candidates. (¶¶ 4, 9, 12, 12.1, 12.3, 42, 67.1, 68)
• Proviso to Rule 7 (three years' practice or 70% aggregate in first attempt), Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994Applying the doctrine of indirect discrimination, the Court held that although facially neutral the requirement is discriminatory in operation against candidates with disabilities, for whom practice at the bar and securing marks are not equal conditions. It was struck down for such candidates insofar as it requires the 70% aggregate to be secured in the first attempt or three years' practice; the educational qualifications and the 70% aggregate (with relaxation as for SC/ST) continue to apply. (¶¶ 17, 18, 19, 43, 46, 67.1, 68)
• Rule 19 (power to relax), Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994The Chief Justice's power to dispense with or relax any rule causing undue hardship in a case or class of cases, read with Indra Sawhney and the DoPT Office Memorandum, was relied on to conclude that relaxation of minimum interview marks for candidates with disabilities is possible. (¶¶ 59, 62)
• Rules 10, 20, 24 and 41, Rajasthan Judicial Service Rules, 2010Rule 10 reserves vacancies for persons with benchmark disabilities as a separate category; Rule 20 fixes the numbers admitted to the main examination and interview category-wise; Rule 24 prescribes minimum aggregate marks; and Rule 41 requires a category-wise merit list with such cut-offs as the Court fixes. The Court concluded that these rules treat the disability category as a separate class, making the declaration of a separate cut-off and merit list for it at each stage mandatory. (¶¶ 14, 25, 26, 27.2, 63, 63.3)
• Clause 11 (relaxation of standard of suitability), Department of Personnel and Training Office Memorandum No. 36035/02/2017-Estt (Res) dated 15.01.2018Clause 11.1 permits candidates with benchmark disabilities to be selected on a relaxed standard to fill vacancies reserved for them when sufficient candidates are not available on the general standard, provided they are not found unfit. The Court treated it as clearly permitting the authority to relax minimum marks, rejecting the objection that the appellant could not benefit from it. (¶¶ 23.1, 24.1, 24.2, 47, 60, 62)
• Articles 14, 15, 16 and 21, Constitution of IndiaEquality, inclusivity and the right to live with dignity form the bedrock against which the rules were tested. The Court noted that disability is absent from the grounds in Article 15 but held this does not exclude the State's constitutional obligations, observed that it is high time an anti-discrimination clause covering disability is added, and held reasonable accommodation to be a fundamental right integral to substantive equality under Article 21. (¶¶ 33, 34, 35, 40, 42, 67)
• Article 335 (as construed in Indra Sawhney), Constitution of IndiaIndra Sawhney held that reasonably lower qualifying marks may be prescribed for reserved categories at the stage of direct recruitment consistently with efficiency of administration, though not dispensed with altogether. The Court applied this to hold that relaxation of minimum marks for candidates with disabilities does not dilute efficiency of administration. (¶¶ 58, 59, 62)
• Articles 41 and 253, Constitution of IndiaArticle 41 was treated as imposing a duty on the State to make effective provision for public assistance to disabled persons, to be advanced in interpreting legislation; Article 253 was noted as the source of Parliament's power to enact the RPwD Act, 2016 in fulfilment of India's obligations under the UNCRPD. (¶¶ 35, 40)
• Articles 1, 5, 9, 13 and 27, United Nations Convention on the Rights of Persons with Disabilities, 2006The Convention's guarantees of equality and non-discrimination, reasonable accommodation, accessibility, access to justice and non-discrimination in employment, binding on India as a signatory, were relied on together with General Comment No. 6 on inclusive equality to hold that impairment cannot be a legitimate ground for denying rights and that visually impaired candidates cannot be deemed unsuitable. (¶¶ 35, 37, 38, 42)

Held

• Inclusivity and equality are part of the bedrock and basic structure of the Constitution, and the right to life under Article 21 includes the right to live with dignity. Although 'disability' is conspicuously absent as a ground in Article 15, the enactment of the RPwD Act, 2016 under Article 253 and the reservation obligations in Sections 32 and 34 show that the State has undertaken, for persons with disabilities, protection similar to that mandated by Articles 15 and 16; it is high time an anti-discrimination clause on the ground of disability is added to the Constitution. The RPwD Act, 2016 has acquired the status of a 'super statute' with quasi-constitutional significance. (¶¶ 33, 34, 35, 36, 67)
• Reasonable accommodation is not a discretionary measure but a fundamental right integral to substantive equality and the right to dignity under Article 21. The assessment of a person's suitability, capacity and capability for a post is not to be measured by medical or clinical assessment but after providing reasonable accommodation and an enabling atmosphere; any decision innocent of this principle amounts to disability-based discrimination. A rule excluding visually impaired candidates from judicial service on the basis of a doctor's clinical opinion driven by suspicion cannot have any place in disability jurisprudence. Visually impaired candidates cannot be said to be 'not suitable' for judicial service, and Rule 6A of the Madhya Pradesh Judicial Service Rules, 1994 falls foul of the Constitution to the extent it excludes visually impaired and low-vision candidates who are educationally qualified. (¶¶ 40, 41, 42, 67.1, 68)
• Indirect discrimination arises where facially neutral criteria, by not accounting for their underlying effects, operate to the disadvantage of a class; unequals cannot be treated equally. Applying this test, the proviso to Rule 7 requiring either three years' practice or 70% aggregate in the first attempt, though fair at first blush, is discriminatory in operation against lawyers with disabilities, for whom the ease of practice and of securing marks is not an equal condition, particularly when SC/ST candidates were granted relaxation in aggregate marks. The proviso is struck down insofar as it applies to candidates with disabilities; the rule continues to apply to them as to educational and other qualifications, including the 70% aggregate (with relaxation as may be determined like for SC/ST), but without the requirement of the first attempt or of three years' practice. (¶¶ 43, 44, 45, 46, 67.1, 68)
• The mere existence of vacancies is not by itself a ground to relax minimum marks, and prescribing a minimum cut-off for the interview is legally permissible. However, persons with disabilities are a separate class, are equally socially backward, and are entitled at least to the same relaxation and concessions as SC/ST candidates (Anamol Bhandari, Aryan Raj). Indra Sawhney permits a reasonably lower qualifying standard for reserved categories at direct recruitment consistent with efficiency of administration, so relaxation of minimum marks for candidates with disabilities does not dilute efficiency. Where, as here, the appointing authority has a specific power of relaxation (Rule 19) and the DoPT Office Memorandum of 15.01.2018 (Clause 11) provides for selection on a relaxed standard when sufficient candidates with benchmark disabilities are not available, relaxation of the minimum cut-off marks, including in the interview, is permissible. (¶¶ 49, 49.1, 50, 51, 52, 52.1, 53, 53.1, 54, 55, 57, 58, 59, 60, 62, 67.1)
• Maintaining and operating a separate cut-off list is mandatory for each category, which axiomatically includes the disability category. Non-declaration of cut-off marks for that category affects transparency, leaves candidates uninformed of the basis of their results, and in effect compels them to compete with other categories on unequal terms. Where the Rules treat persons with disabilities as a separate category with reservation, the authorities must declare separate cut-off marks and publish a separate merit list for that category at every stage of the examination and proceed with selection accordingly. (¶¶ 63, 63.2, 63.3, 67.1)
• For the rights and entitlements of persons with disabilities, particularly in employment and specifically in respect of the issues decided, there can be no distinction between persons with disabilities and persons with benchmark disabilities; any such technical distinction drawn by the authorities cannot be sustained in law, as denying rights on the ground that a benchmark disability is not met would be ultra vires the RPwD Act, 2016. (¶¶ 64, 67.1)
• Appointing authorities should bear in mind the observations in Om Rathod v. Director General of Health Services so that specially-abled persons form part of interview panels, enabling them to assess the capabilities of candidates with disabilities from their standpoint. (¶ 61)
• A rights-based approach requires that persons with disabilities face no discrimination in pursuing judicial service and that the State take affirmative action to provide an inclusive framework; the right against disability-based discrimination recognised in the RPwD Act, 2016 should be viewed as of the same stature as a fundamental right. Any indirect discrimination excluding such persons through rigid cut-offs or procedural barriers must be interfered with to uphold substantive equality, and merit must be evaluated with due regard to the reasonable accommodations required. (¶ 67)

Result

All matters disposed of, no costs. Rule 6A struck down insofar as it excludes visually impaired and low-vision candidates; proviso to Rule 7 struck down for candidates with disabilities, and the MP High Court order of 01.04.2024 and notification of 17.11.2023 set aside as against them. Order of 11.01.2024 and notification of 18.02.2023 set aside for Alok Singh and similarly placed candidates, to be appointed if eligible after relaxation. Rajasthan petitioners to be considered in the next recruitment with a separate cut-off and merit list. Selections to be completed within three months.