Govt Has Discretion U/S 32 PwD Act To Decide Mode & Manner Of Giving Minimum 5% Reservation To Persons With Benchmark Disability: Calcutta HC

The Calcutta High Court on Monday made it clear that Section 32 of the Rights of Persons with Disabilities Act, 2016 confers discretion upon the Government to decide the mode and manner in which the minimum 5% reservation is to be granted to persons with benchmark disability.While reiterating that there is a constitutional mandate to facilitate development of the disabled with "reasonable accommodation", Justice Aniruddha Roy also held,"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."The bench was hearing a cluster of inter-related writ petitions challenging conditions for reservation of seats for persons with physical disabilities in respect of the National Eligibility Cum Entrance Test-Post graduation, 2022. The cause of action arose when the petitioner, afflicted with Deltoid Paralysis in his left arm with a locomotor disability of 50%, discovered that no reservation was provided for persons with disabilities in respect of the stream of Dermatology, as opposed to streams of General Surgery, Gynaecology and Obstetrics, among others. The petitioner contended that such absence of reservation for Dermatology was arbitrary and without consideration for the nature of the stream as similarly placed individuals suffering from the identical locomotor disabilities were permitted to avail the benefit of reservation for the other streams whereas the petitioner who opted for Dermatology, was deprived of such benefit. Counsels for the petitioners relied on the principle of "reasonable accommodation" as implicitly enshrined within S. 32 of the Act, arguing that the accommodation contemplated therein was a constitutional mandate which has to be tailored to the requirement of each condition of disability and to meet the expectations of every disabled person as to the uniqueness of the nature of disability and the character of the impediments encountered as a consequence thereto. Counsels for the petitioners further contended that the selective reservation for some streams and not for others, manifested in discriminatory exercise of State discretion. Counsels for the respondent State authorities assailed the locus standi of the petitioner on account of the petitioner having already taken up admission in the stream of MD-General Medicine in the Central Quota, which barred the petitioner from further participating in the State and PWD Quota counselling in the second round, in terms of Regulation 9A(4) of the Medical Council of India Post Graduate Medical Education Regulations, 2000. While dismissing the petition, the High Court came to the definitive conclusion that policy making experts of the Governmental Educational Institutions were clearly vested with the power and authority to administer the provisions laid down under the statute, holding that such experts: "… 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." The Court accordingly ruled that that the State Government being the master of its roster for allotment and reservation of seats in Government Educational Institution in terms of S. 32 of the Act, had duly complied with such statutory mandate by making necessary reservations in diverse Post Graduation Course streams and therefore, such roster was not to be interfered with unless an ex facie, arbitrary and illegal exercise of discretion was found. Deciding the case on merits, the Court deemed such selective absence of reservation for the stream of Dermatology to have not constituted an arbitrary and illegal exercise of State discretion, ruling: "… 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 ...

Govt Has Discretion U/S 32 PwD Act To Decide Mode & Manner Of Giving Minimum 5% Reservation To Persons With Benchmark Disability: Calcutta HC

SAMRIDDHA SEN

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