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Rights Conferred Upon Persons With Disabilities Cannot Be Constricted By Adopting The Definition Of Benchmark Disability As A Condition Precedent: Supreme Court

Mehal Jain
23 Nov 2021 2:53 PM GMT
Rights Conferred Upon Persons With Disabilities Cannot Be Constricted By Adopting The Definition Of Benchmark Disability As A Condition Precedent: Supreme Court
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The Supreme Court on Tuesday clarified that the rights and entitlements under the Rights of Persons With Disabilities Act, 2016, including the right of 'persons with disabilities' to inclusive education by way of reasonable accommodation, shall not be constricted by reading in the higher threshold prescribed for 'persons with benchmark disabilities'"In terms of the provisions of RPwD Act...

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The Supreme Court on Tuesday clarified that the rights and entitlements under the Rights of Persons With Disabilities Act, 2016, including the right of 'persons with disabilities' to inclusive education by way of reasonable accommodation, shall not be constricted by reading in the higher threshold prescribed for 'persons with benchmark disabilities'

"In terms of the provisions of RPwD Act 2016, there is a clear distinction between the rights available to a candidate at the stage of the examination (in terms of the provisions of Section 17(i) falling under Chapter III) and the rights applicable at the stage of admission (under Section 32 falling under Chapter VI) of the RPwD Act 2016...By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply", the Court has said.
The bench of Justices DY Chandrachud and AS Bopanna was pronouncing its decision on the plea by a female NEET-2021 candidate suffering from dysgraphia whose grievance was that she was refused an additional one hour's time for attempting the paper by the examination centre. Her prayers were that either she may be allowed a re-examination, or be appropriately compensated by way of grace marks or no negative marking or otherwise.
"The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. Accordingly, the NTA is directed to consider what steps could be taken to rectify the injustice within a period of one week. Further, it shall take necessary consequential measures under intimation to the DGHS...The steps taken by the first respondent in furtherance of direction (ii) above in Paragraph 57 must be communicated to the Registry of this Court by filing a status report within a period of two weeks from the date of this judgment", directed the bench.
"It was brought to our notice that the examination centre was ignorant about the facilities to which the appellant was entitled. There was an evident confusion between the authorities working at the first respondent as well. The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs", the bench has further ordered.
Facts
The Supreme Court records that the appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act 2016. The appellant has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a 'person with benchmark disability' under Section 2(r) of the RPwD Act 2016. The appellant claims that as a person with disability, she is entitled to reasonable accommodation and certain relaxations. Among them is the benefit of "inclusive education" by a suitable modification to the examination system, as mandated by Section 17(i) of the RPwD Act, 2016. The Ministry of Social Justice and Empowerment has issued guidelines for conducting "Written Examination for Persons with Benchmark Disabilities" on 29 August 20184. These guidelines govern the examinations of all students covered by the RPwD Act 2016. They are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations.
The National Testing Agency – the first respondent, is responsible for conducting the National Eligibility cum Entrance Test for admission to under-graduate medical courses. The appellant urges that the Guidelines on Written Examinations are referenced in clauses 5.3 and 5.4 of the Information Bulletin of the National Eligibility cum Entrance Test (UG)-20216 issued by the first respondent, and are hence binding on them.
The appellant appeared for the NEET on 12 September 2021. Given her PwD status, she claimed a relaxation in terms of an additional hour of compensatory time, as against the total time of three hours prescribed for regular candidates. The appellant was allotted the second respondent (Thakur College of Engineering and Technology, Kandivali [East], Mumbai) as her centre for undertaking the NEET. The appellant averred that the second respondent was ignorant of the grant of special facilities that had to be provided to PwD candidates. The grievance of the appellant is that the second respondent had initially assured her that facilities for PwD, if prescribed in the rules, would be provided to her. However, towards the end of the scheduled duration of three hours, her answer sheet was "forcibly" collected together with the category of regular students appearing for the examination depriving her of compensatory time.
On 23 September 2021, the appellant moved a writ petition under Article 226 of the Constitution before the High Court of Judicature at Bombay. Among other alternative reliefs, she sought a direction to the first respondent to hold a fresh examination for the appellant while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations.
On 11 October 2021, the High Court passed the following interim order: "5. It is not in dispute that the respondent no. 3 college permitted the petitioner to appear for the said NEET test though the petitioner had produced the learning disability certificate issued by the Sion Hospital without raising any objection. It is the case of the petitioner that the petitioner had made a request to give the benefit of clause 5.4(b) for compensatory time of one hour for the examination of three hours. The petitioner had not used the facility of any scribe. 6. In view of the statement made by the learned counsel for the respondent no.1 and in view of the fact that the petitioner has already appeared in the said test without raising any objection by the respondent no.2, we direct the respondent no.1 to take appropriate decision on the application of the petitioner for re- appearing in the said test keeping in mind the principles laid down by the Hon'ble Supreme Court in case of Vikash Kumar vs. Union Public Services Commission & Others, (2021) 5 SCC 370 i.e. of reasonable accommodation by making adjustments to enable disabled person to effectively counter the barriers posed by disability person and sympathetically. Learned counsel for the petitioner agrees to produce the certificate from one of the agency prescribed in the said Information Bulletin at Appendix VIII-B within one week from today. The respondent no.1 shall consider the certificate obtained by the petitioner from one of the agency prescribed Appendix VIII-B within one week from the date of the petitioner producing such certificate and shall communicate the decision that would be taken by the respondent no.1 to the petitioner within two days the date of taking a decision. It is made clear that this order shall not be used as a precedent in any other matter."
In furtherance of the interim order of the High Court, the appellant stated that she approached the Grant Government Medical College, Mumbai (the sixth respondent) on 12 October 2021, but was informed that the certificate in the format prescribed under Appendix VIII-A is applicable at the time of admission when a PwD candidate is claiming reservation and not for claiming relaxation and benefits during the examination. For further clarification, the appellant approached the Directorate of Medical Education and Research (the fifth respondent). The fifth respondent reiterated that the certificate under Appendix VIII-A cannot be issued before the declaration of results.
On 26 October 2021, an additional affidavit was filed by the appellant placing relevant material to indicate that a certificate conforming to Appendix VIII-A is issued only after the declaration of results and was required only at the time of seeking admission. By the impugned judgment dated 29 October 2021, a Division Bench of the High Court dismissed the appellant's writ petition. While dismissing the petition, the High Court has noted that the statement which was made on behalf of the first respondent that the appellant's case would be considered if a certificate is produced from one of the centres referred in Appendix VIII-B was incorrect and was made by the counsel due to a "miscommunication". Despite noting the appellant's contention that she is not required to obtain any such certificate from the agency prescribed in Appendix VIII-B, the High Court declined to entertain the petition.
Nonetheless, the Division Bench observed that if the appellant submits a representation to the first respondent, that would be duly considered within four weeks. The High Court has also adverted to an ad-interim order dated 28 October 2021 of this Court in a Special Leave Petition under Article 136 of the Constitution instituted by the first respondent (National Testing Agency v. Vaishnavi Vijay Bhopale). This Court has stayed an interim order of the High Court directing a fresh examination in that case. Relying on the interim order of this Court dated 28 October 2021, the High Court vacated its interim order and dismissed the writ petition filed by the appellant.
Observations of the Supreme Court
NTA justified in taking the stance that re-examination cannot be ordered for one student, but redressal of injustice is non-negotiable
The bench held that the first respondent is justified in taking the stance that a re-examination cannot be ordered for one student, noting that the option of a re-examination for a single student would also stand eschewed by a decision of a two judge Bench of this Court in National Testing Agency v. Vaishnavi Vijay Bhopale on 12 November 2021.
"In the present case, the appellant had sought a re-examination where she would be allowed compensatory time as mandated by the Guidelines for Written Examination and the NEET Bulletin 2021. We are in agreement with the view in Vaishnavi Vijay (supra) that holding a fresh examination is neither practicable nor proper. Holding a fresh examination will delay medical admissions and cause uncertainty and chaos. To that extent, the denial of the relief sought for conducting a fresh examination for the appellant is not disturbed. At the same time, we are of the view that the first respondent must factor in the possibility of such errors occurring in the process of conducting the NEET. The manner in which the first respondent deals with cases of serious prejudice, as occasioned in the present case, has to be decided by it as an expert agency", said the bench.
The Court has said that it would eschew the course of dictating the manner in which the grievance should be rectified, leaving it to the discretion of the testing agency which is entrusted with the overall responsibility of conducting the examination- "The first respondent took certain steps as noted above in Vaishnavi Vijay (supra). Similarly, in the present case, we are of the categorical view that the first respondent cannot shirk or abrogate its responsibility to rectify the injustice which has been caused to the appellant. The first respondent may consider extrapolation of the marks awarded to the appellant or grant compensatory marks. Similar to the steps in Vaishnavi Vijay (supra), the first respondent could also consider adopting a 'no negative marks' scheme. We are not restricting the first respondent to only the above options and will leave the decision on the modalities of remedying the injustice caused to the appellant to the first respondent. The injustice which has resulted is clearly due to a breach in observing the entitlements due to the appellant under the RPwD Act 2016."
The bench further stated that the submissions of the NTA boil down to the first respondent informing the Court that in an examination of such large proportions where over 16 lakh students registered and over 15 lakh students appeared, it would not be possible to undo the injustice which has been done to a single candidate. "The first respondent must remember that all authority under the law is subject to responsibility, and above all, to a sense of accountability. The first respondent is governed by the rule of law and by the constitutional requirement of observing fairness. Behind the abstract number of '15 lakh students' lie human lives that can be altered due to the inadvertent, yet significant errors of the first respondent. The first respondent, as an examining body, was bound to scrupulously enforce the Guidelines for Written Examinations dated 29 August 2018 which provides for specific relaxations. The appellant has suffered injustice by a wrongful denial of these relaxations and a lack of remedy by this Court would cause irretrievable injustice to the life of the student. The RwPD Act 2016 prescribing beneficial provisions for persons with specified disabilities would have no meaning unless it is scrupulously enforced. In our view, the first respondent cannot be allowed to simply get away when confronted with the situation in hand whereby injustice has been caused to a student by standing behind the situation of a large competitive examination. Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination", asserted the bench.
The court has stated that the NTA, as a testing agency, has been assigned specific functions which are clarified in the NEET Bulletin 2021- "The first respondent, as a testing agency, was duty-bound to comply with the Guidelines on Written Examination dated 29 August 2018, prescribed by the Ministry of Social Justice and Empowerment. The Guidelines for Written Examination hold the field for all examinations attempted by PwDs. The grievance of the appellant is that she was deprived of the compensatory additional one hour for attempting the examination, simply because the second respondent (the designated centre) was unaware of the rights of PwD candidates and the corresponding obligations on the second respondent. This state of affairs reflects the responsibility of the first respondent to ensure that personnel at examination centres are trained and provided with clear guidelines for the implementation of the provisions made for PwD. In the absence of adequate training, rights conferred on candidates with "specified disabilities" by Parliament, are set at nought."
The bench criticised that it was in the teeth of the specifications in paras 5.3.1, 5.3.3 and 5.4(b) of the NEET Bulletin 2021 that the High Court was led to believe that an disability certificate from a designated centre was required to seek an extra hour of compensatory time- "There is evident confusion between the authorities working at the first respondent, which has led to a tragedy affecting the legitimate rights and entitlement of a student who suffers from a specified disability."
Rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent
In the decision in Vikash Kumar v. Union Public Service Commission, the Supreme Court categorically observed that the concept of benchmark disability is applicable in the context of the provisions contained in Chapter VI of the RPwD Act 2016, which is titled 'Special Provisions for Persons with Benchmark Disabilities.
On Tuesday, the bench emphatically clarified that rights and entitlements conferred upon PwD are specified in Chapter II,and that these rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights- "Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI. Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability."
Right to inclusive education is a right available at the stage of the examination, clearly distinct from the rights applicable at the stage of admission
The bench has noted that the RPwD Act 2016 contains salutary provisions on the rights of PwD to inclusive education in Chapter III- Section 17, which forms a part of Chapter III, entails specific measures to promote and facilitate inclusive education for students with disabilities. Among other inclusive measures in Section 17, is sub-section (i) which prescribes a duty to make suitable modifications in the curriculum and examination system to meet the needs of students with disabilities. This duty can be fulfilled by providing extra time for the completion of examination papers and/or the facility of a scribe.
"The provision of inclusive education is not limited to children with disabilities but extends to adults with disabilities. Section 18 provides that the government and local authorities are duty-bound to take measures to promote, protect and ensure participation of PwD in adult education and continuing education programmes on an equal footing with others...The provisions for reservation in Chapter VI specifically for PwBD are distinct from the provisions in Chapter III for PwD. PwD encompasses a wider group of which PwBD is a sub-set. This distinction extends to efforts under Section 17 to promote inclusive education", the bench has reflected.
The bench recorded that above all, the RPwD Act 2016 contains provisions mandating reasonable accommodation and that the right to inclusive education is realized through the provision of reasonable accommodation- "It is clear in the present case that the appellant was denied her entitlement to reasonable accommodation and the State failed to fulfil its positive duty of protecting her right to inclusive education. The Guidelines for Written Examination dated 29 August 2018 issued as an Office Memorandum by the Ministry of Social Justice and Empowerment, hold the field insofar as the written examinations for PwD candidates are concerned."
The bench has further observed that in terms of the provisions of RPwD Act 2016, there is a clear distinction between the rights available to a candidate such as the appellant at the stage of the examination (in terms of the provisions of Section 17(i) falling under Chapter III) and the rights applicable at the stage of admission (under Section 32 falling under Chapter VI) of the RPwD Act 2016.
"There was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the first respondent. It is noteworthy that the confusion has also arisen because of the manner in which NEET Bulletin 2021 has been drafted. A clear-eyed information bulletin must provide a distinction between the rights that are available to PwD candidates at the stage of the examination and the rights which are available in terms of reservation after the results of the NEET are declared. As a result of the ambiguity in the NEET Bulletin 2021, and the absence of adequate training to the second respondent which was allotted as the appellant's centre, the appellant lost the benefit of a compensatory hour during the course of the entrance examination", noted the bench.

The petition was filed through Advocate on Record Vikas Jain and the counsel for the petitioner was Rushabh Vidyarthi. 

Case Title: Avni Prakash versus National Testing Agency and others
Citation: LL 2021 SC 674



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