Effect Of Rights Of Persons With Disability Act Can't Be Taken Away By Conditions In Prospectus Of Educational Institute: Kerala High Court

The Kerala High Court has recently observed that the "effect" of Rights of Persons with Disabilities Act (RPwD) 2016 which defines a person with physical disability and their certification cannot be taken away by certain conditions imposed in the prospectus of an educational institute. The court however said the State is not disempowered in adopting a uniform process for admissions to professional institutes, which can be done by stating that the State Medical Board will be the certifying authority constituted as per the prospectus. A proper notification would be required under Section 57, RPwD Act, the court said.The observation came in the State's appeal against an order of the single judge bench which had directed the reconsideration of the respondent students' eligibility to medical courses based on the disability certificates issued by the certifying authority under Section 57 RPwD Act. Without differing from the single judge's view on law, a division bench of Justice T R Ravi and Justice M B Snehalatha said, "We do not find any reason to take a different view from what has been stated in the judgment of the learned Single Judge as regards the law on the point. Unlike the earlier enactment, the (Rights of Persons with Disabilities) 2016 Act specifically provides for certifying persons with physical disability and there is also an appellate remedy available for correction of a mistake, if any committed by the certifying authority. The person with physical disability itself is defined in terms of a certification by the designated Certifying Authority. The effect of the Statute cannot be taken away by certain conditions imposed in the prospectus. This does not mean that the State is powerless to adopt a uniform procedure when it comes to admissions to the Professional Colleges". The bench said that it is open for the State to declare that in respect of admission to medical colleges, the certifying authority will be the State Medical Board which is to be constituted as per the prospectus. It observed that for this a "proper notification" is required under Section 57. For context, Section 57 states that the appropriate Government shall designate persons, having requisite qualifications and experience, as certifying authorities, who shall be competent to issue the certificate of disability. It further states that the appropriate Government shall also notify the jurisdiction within which and the terms and conditions subject to which, the certifying authority shall perform its certification functions."Such a process would also ensure uniformity since the very same Board will be considering the case of all the candidates, who are claiming benefit of reservation and the mischief caused by the subjectivity of the decisions by several certifying authorities can also be avoided," the court said while disposing of the appeals. BackgroundThe respondents before the division bench are students in whose favour certifying authorities issued disability certificates under the Rights of Persons with Disabilities Act, 2016 for admission to Medical and Allied courses. The admission prospectus for Medical and Allied courses stated that the applications which are to be uploaded need not annex the disability certificates and all that is required is an indication in the application that the benefit is being claimed. It further stated that the State Medical Board constituted by a February 2020 Government Order will examine the degree of physical disability of the candidates who are provisionally included in this category. The Board held that the candidates were not entitled to claim reservation because their physical disability is less than forty per cent. Against this the candidates approached the single judge bench in writ petitions claiming that when the 2016 Act prescribes the method of certifying a person with physical disability, an extra statutory method of assessment–State Board, cannot be prescribed by the prospectusThey also contend that there is no appeal provision against the decision taken by the State Medical Board. The candidates argued that the board had done a review of a disability certificate already issued to them by the certifying Authority. While performing this exercise, no reasoning was given by the board on why it deviated from the certification granted to the candidates by the certifying authority appointed under the 2016 Act. The single judge bench held that the students were entitled to succeed and directed their eligibility to be reconsidered based on the disability certificates issued by the certifying authority under Section 57 of the Act. Pursuant to this the State moved an appeal before the division bench. FindingsThe State had contended before the division bench that the single judge bench's decision is contrary to the law laid down by the high court's decision in Aswathy P. (Minor) v. State of Kerala and Others (2011). The state further submitted that the judgment has...

Effect Of Rights Of Persons With Disability Act Can't Be Taken Away By Conditions In Prospectus Of Educational Institute: Kerala High Court

Tellmy Jolly

Tags