2025 INSC 300
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
IN RE RECRUITMENT OF
VISUALLY IMPAIRED ...
Petitioner
VERSUS
THE REGISTRAR GENERAL
THE HIGH COURT OF
Respondent
Suo
Motu Writ Petition (Civil) No. 2 OF 2024 With Suo Motu Writ Petition (Civil)
No. 6 OF 2024 With Civil Appeal No. 3496 Of 2025 (Arising Out Of Slp (C)
No.7683 of 2024) With Civil Appeal No. 3497 OF 2025 (Arising out of SLP (C)
No.12179 of 2024) With Writ Petition (Civil) No. 484 OF 2024 With Writ Petition
(Civil) No. 494 OF 2024-Decided on 03-03-2025
Service Law
(A)
Constitution of India, Constitution of India, Articles 14, 15,
16, 21 32 and 136 – Madhya
Pradesh Judicial Services Examination (Recruitment and Conditions of Service)
Rules 1994, Rule 6A (as amended on 7.3.2024), Rule 7 - Madhya Pradesh
Judicial Service Examination (Amendment) Act, 2023 - Rights of Persons with Disabilities Act, 2016, Section 34, 101 -
Madhya Pradesh Rights of Persons with Disabilities Rules, 2017, Rule
12(1)(a) - Service Law - – Reservation
for PwD candidates - Recruitment –
Judicial services - Exclusion of visually
impaired and low vision candidates from appointment in the judicial service
vide Rule 6A of Rules 1994 – Challenge to validity of Rule 6-A - Whether
visually impaired candidates can be said to be ‘not suitable’ for judicial
service? – Held that visually impaired candidates cannot be said to be ‘not
suitable’ for judicial service and they are eligible to participate in selection
for posts in judicial service
(Para 67 and 68)
(B)
Constitution of India, Constitution of India, Articles 14, 15,
16, 21 32 and 136 – Madhya
Pradesh Judicial Services Examination (Recruitment and Conditions of Service)
Rules 1994, Rule 6A (as amended on 7.3.2024), Rule 7 - Rights of Persons with Disabilities
Act, 2016, Section 34, 101 - Madhya Pradesh Rights of Persons with Disabilities
Rules, 2017, Rule 12(1)(a) - Service Law
- Reservation for PwD candidates - Recruitment – Judicial services – Reservation for
PwD candidates - Exclusion of visually
impaired and low vision candidates from appointment in the judicial service
vide Rule 6A of Rules 1994 – Challenge to validity of Rule 6-A -ii.
Whether the amendment made in Rule 6A of Madhya Pradesh Judicial Services
(Recruitment and Conditions of Service) Rules, 1994 falls foul of the
constitution? The amendment made in Rule 6A of the Rules, 1994 falls foul of
the Constitution, and is hence, struck down to the extent that it does not
include visually impaired persons who are educationally qualified for the post
to apply therefor.
(Para 67 and 68)
(C)
Constitution of India, Constitution of India, Articles 14, 15,
16, 21 32 and 136 – Madhya
Pradesh Judicial Services Examination (Recruitment and Conditions of Service)
Rules 1994, Rule 7 - Madhya Pradesh Judicial Service Examination
(Amendment) Act, 2023 - Rights of
Persons with Disabilities Act, 2016, Section 34, 101 - Madhya Pradesh Rights of
Persons with Disabilities Rules, 2017, Rule 12(1)(a) - Service Law - Reservation for PwD
candidates - Recruitment – Judicial services – Reservation for
PwD candidates - Exclusion of visually
impaired and low vision candidates from appointment in the judicial service
vide Rule 6A of Rules 1994 - Whether proviso to Rule 7 of the Rules,
1994 violates the equality doctrine and the principle of reasonable
accommodation? – Held that the proviso to Rule 7 of the Rules, 1994 relating to
additional requirements, violates the equality doctrine and the principle of
reasonable accommodation, and is hereby struck down in its application to
differently abled persons who have the requisite educational qualifications for
applying to the posts under judicial service - Rule 7 of the Rules, 1994 to the
extent of prescribing additional requirement of either a three-year practice
period or securing an aggregate score of 70% in the first attempt, is struck
down insofar as it applies to PwD candidates - The said rule will be applicable
to the PwD candidates insofar as it prescribes the educational and
other qualifications as eligibility criteria including the minimum
aggregate score of 70% (with relaxation as may be determined like in the case
of SC/ST candidates), but without the requirement of either that it should be
in the first attempt or that they should have three years’ practice - As a
sequel, the impugned order dated 01.04.2024 passed by the High Court and the
consequential notification dated 17.11.2023 issued by the High Court of Madhya
Pradesh, set aside as against the PwD candidates and the appellant viz., Ayush
Yardi and similarly placed persons, are entitled to be considered for
participating in the selection process in the light of this decision.
(Para 67 and 68)
(D)
Constitution of India, Constitution of India, Articles 14, 15,
16, 21 32 and 136 – Madhya
Pradesh Judicial Services Examination (Recruitment and Conditions of Service)
Rules 1994, Rule 6A (as amended on 7.3.2024), Rule 7 - Madhya Pradesh
Judicial Service Examination (Amendment) Act, 2023 - Rights of Persons with Disabilities Act, 2016, Section 34, 101 -
Madhya Pradesh Rights of Persons with Disabilities Rules, 2017, Rule
12(1)(a) - Service Law - Reservation for
PwD candidates - Recruitment – Judicial services – Reservation
for PwD candidates – Relaxation - Whether relaxation can be done in assessing
the suitability of candidates when adequate PwD candidates are not available,
after selection in their respective category? – Held that relaxation can be
done in assessing suitability of candidates when enough PwD are not available
after selection in their respective category, to the extent as stated in the
relevant paragraphs above, and in the light of existing Rules and Official
Circulars and executive orders in this regard, as in the present case.
(Para 67 and 68)
(E)
Constitution of India, Constitution of India, Articles 14, 15,
16, 21 32 and 136 – Madhya
Pradesh Judicial Services Examination (Recruitment and Conditions of Service)
Rules 1994, Rule 6A (as amended on 7.3.2024), Rule 7 - Madhya Pradesh
Judicial Service Examination (Amendment) Act, 2023 - Rights of Persons with Disabilities Act, 2016, Section 34, 101 -
Madhya Pradesh Rights of Persons with Disabilities Rules, 2017, Rule 12(1)(a) - Service Law - Reservation for PwD candidates - Recruitment – Judicial services – Reservation
for PwD candidates – Cut-off marks - Whether a separate cut-off is to be
maintained and selection conducted accordingly for visually impaired candidates?
– Held that a separate cut-off is to be maintained and selection made
accordingly for visually-impaired candidates as has been indicated in the
relevant paragraphs in line with the judgment in Indra Sawhney - For the
purpose of rights and entitlements of persons with disabilities, particularly
in employment, and more specifically in respect of the issues covered in this
judgment, there can be no distinction between Persons with Disabilities (PwD)
and Persons with Benchmark Disabilities (PwBD).
(Para
67 and 68)
JUDGMENT
R. Mahadevan, J. :- Leave granted.
I.
INTRODUCTION
2.
January 4, 2019 was chosen as the World Braille Day by the United Nations to
commemorate the birthday of Louis Braille and to remember him as the man who
invented the system ‘Braille’ in 1829, which is used by the visually impaired
for reading and writing, till date. Louis Braille who became completely blind
in both eyes by the age of five, had developed this system by himself at the
age of 20 inspired by the communication system devised by Captain Charles
Barbier of the French Army, and offered professorship at the National Institute
for Blind Youth, Paris, where he taught history, geometry and algebra while
also having an ear for music. Almost two centuries ago from now, Louis Braille
had understood that what the visually impaired needed was not pity or sympathy
but accommodation and an enabling atmosphere in which communication played an
important role. In his own words, “access to communication in the widest sense
is access to knowledge, and that is vitally important for us if we (the Blind)
are not to go on being despised or patronized by condescending sighted people.
We do not need pity, nor do we need to be reminded we are vulnerable. We must
be treated as equals and communication is the way this can be brought about.”
His words are a poignant and resounding reminder of the fervent appeal of
Persons with Disabilities[For short,
“PwD”] to be afforded equal opportunities so as to enable them to
enjoy a life of dignity and progress in all spheres on par with their
able-bodied counterparts.
3.
“Our constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law.”
This prophetic dissenting opinion of Justice John Marshall Harlan in Plessy v.
Ferguson (1896) can well be said to capture the spirit of what we are called
upon to decide today. To draw a parallel, the Constitution of India is blind to
the differences between able-bodied and differently abled citizens in matters
of providing equal opportunity to all citizens in all spheres of life,
including employment, and envisages equality and non-discrimination. This
principle is to be enforced by the Constitutional Courts, by adopting a
rights-based approach, providing an enabling environment and atmosphere, and
ensuring that PwD are provided with equal opportunities, and accommodation that
they need and deserve in order to make sure that they can lead their lives with
dignity, realising their fullest potential without facing discrimination.
Holding this concept of equality and non-discrimination as the basic foundation
on which all issues arising from the cases on hand are to be decided, we
proceed further to deal with them.
II.
RELIEFS PRAYED FOR
4.
On 07.03.2024[1. The Madhya Pradesh
Judicial Services Examination (Recruitment and Conditions of Service) Rules
1994 have been amended, as a consequence of which, Rule 6A excludes visually
impaired and low vision candidates from appointment in the judicial service.
2. A letter petition
has been converted into a petition under Article 32 of the
Constitution.
3. We direct issuance
of notice, returnable in two weeks to:
(i)
The Registrar General of the High Court of Madhya Pradesh;
(ii)
The State of Madhya Pradesh; and
(iii)
The Union of India.
4. We request Mr
Gaurav Agarwal, senior counsel to assist the Court as Amicus Curiae in the
matter. At this request, Mr Ravi Raghunath, counsel shall stand nominated as
Advocate-on-Record to assist him.
5. List the Petition
on 1 April 2024.],
this Court has taken suo motu cognizance of a letter petition dated 15.01.2024,
which was addressed to the Hon’ble Chief Justice of India, by the mother of a
judicial aspirant who is a visually impaired candidate, challenging the
legality of the Madhya Pradesh Judicial Service Examination (Recruitment and
Conditions of Service) Rules 1994, as amended on 23.06.2023, whereby Rule 6A
excludes visually impaired and low vision candidates from appointment in the
judicial service. According to the letter petitioner, the action of the Madhya
Pradesh High Court is arbitrary, discriminatory, unjust and violative of the
spirit of the Constitution. Hence, she requested this court to examine the
matter and protect the interests of visually impaired candidates ensuring their
right to equal opportunity and a dignified life, as per the Rights of Persons
with Disabilities Act, 2016[For short,
“the RPwD Act, 2016”].
5.
This case arises from a letter petition sent by a visually impaired law student
to the Hon’ble Chief Justice of India, requesting to take necessary steps to
ensure transparency, fairness and equal opportunity for persons with
disabilities candidates in judicial service examinations in Rajasthan.
Appeal
arising from SLP(C) No.12179/2024
6.
Challenge is to the final order dated 01.04.2024 passed by the High Court of
Madhya Pradesh at Jabalpur in W.P. No. 30465 of 2023, whereby, the High Court
rejected the challenge to the amendment in Rule 7 of the Madhya Pradesh
Judicial Service (Recruitment and Conditions of Service) Rules, 1994 and the
consequential notification dated 17.11.2023 issued by the High Court of Madhya
Pradesh as they do not provide a specific exemption for persons with
disabilities, and consequential direction to the respondent authorities to give
relaxation of Rule 7 to the appellant herein.
Appeal
arising from SLP(C) No.7683 of 2024
7.
Challenge is to the order dated 11.01.2024 passed by the High Court of Madhya
Pradesh at Jabalpur in Writ Petition No.11175/2023. The said writ petition was
filed by the appellant (i) to set aside the notification dated 18.02.2023 as
far as it relates to non-selection of the appellant on the vacant post of
Physically Handicapped Quota under the Unreserved category on the post of Civil
Judge, Junior Division (Entry Level), and (ii)to direct the respondent
authorities to grant appointment to the appellant on the post of Civil Judge,
Junior Division (Entry Level) under Physically Handicapped candidate under the
Unreserved category along with all consequential benefits. By the order
impugned herein, the High Court dismissed the writ petition by observing that
the benefit under Section 34 of the RPwD Act, 2016 and Clause 11 of
the Office Memorandum dated 15.01.2018, cannot be granted to the appellant
herein.
W.P.
(C) Nos. 484 and 494 of 2024
8.
To issue a writ of Mandamus directing the High Court of Rajasthan, to publish
separately and declare the results and cut off marks for persons with benchmark
disabilities[For short, “PwBD”]
category for the Rajasthan Judicial Service Examinations at every stage viz.,
Preliminary, Mains, Interviews and final result.
I.A.No.242002
of 2024 in W.P(C) No. 494 of 2024
8.1.
In addition to the above reliefs, the petitioner sought the following prayers,
by way of this amendment application:
(i) To issue a declaration
that the Rajasthan Judicial Service Rules, 2010 are violative of Articles
14, 16 and 21 of the Constitution of India insofar as they do
not provide for the declaration of a separate merit list and/or cut-off for
persons with benchmark disabilities’ candidates despite the candidates
constituting a separate class of candidates competing amongst themselves;
(ii)To issue a
Mandamus directing the Respondent No.1 to amend the Rajasthan Judicial Service
Rules, 2010 to bring them in accordance with Rights of Persons
with Disabilities Act, 2016 and Office Memorandum issued by the
Department of Personnel and Training, Ministry of Personnel, Public Grievances
and Pensions, Govt. of India time and again to include specific provisions for
the declaration of a separate merit list for Persons with Benchmark
Disabilities;
(iii)To issue a
Mandamus directing the Respondent No.1 to hold the separate main examinations
for the candidates of persons with benchmark disabilities category including
the petitioner herein, for selection in the Rajasthan Judicial Service
Examination, 2024;
(iv)To issue a
Mandamus directing the Respondent No.1 to declare the results for the
candidates of persons with benchmark disabilities category separately for each
stage of shortlisting for the purposes of selection in the Rajasthan Judicial
Service Examination, 2024.
III. SUMMARY OF
PLEADINGS & SUBMISSIONS OF LEARNED COUNSELS
A. IN RE: RECRUITMENT
OF VISUALLY IMPAIRED IN JUDICIAL
SERVICES VS. REGISTRAR
GENERAL, HIGH COURT OF MADHYA
PRADESH AND OTHERS
[SUO MOTU WRIT PETITION (CIVIL) NO.2 OF 2024]
9.
Based on the letter petition dated 15.01.2024 given by the mother of a visually
impaired candidate to the Hon’ble Chief Justice of India, challenging the
amendment made in Rule 6A of the Madhya Pradesh Judicial Service (Recruitment
and Conditions of Service) Rules, 1994, whereby reservation granted in favour
of blind and low vision persons, was withdrawn, this Court has registered the
captioned suo motu Writ Petition.
10.
The respondents in this suo motu writ petition are the High Court of Madhya
Pradesh, Government of Madhya Pradesh and Union of India. Vide order dated
15.04.2024, this Court impleaded one Dr. Sanjay S. Jain, a professor of Law at
the National Law School of India University, Bangalore, with over 25 years of
teaching experience and totally blind since birth, as an intervenor, to assist
the Court in connection with the present issue concerning the appointment of
visually impaired persons as Judges in District Judiciary.
Submissions
of the Letter Petitioner
11.
According to the letter petitioner, Rule 12(1)(a) of the Madhya Pradesh Rights
of Persons with Disabilities Rules, 2017 framed by the Madhya Pradesh
Government in exercise of power conferred under Article 101 of
the RPwD Act, 2016 provides for reservation in favour of blind and
low vision persons. In light of the judgment in Rashmi Thakur v.
High Court of Madhya Pradesh and others[AIR
ONLINE 2018 MP 551] and the Madhya Pradesh District Court Establishment
(Recruitment and Conditions of Service) Rules 2016, reservation was given to
visually impaired persons. Other States, such as Haryana, Delhi, etc., also
provide reservation for the same category. Hence, the amendment made in Rule 6A
of Madhya Pradesh Judicial Service (Recruitment and Conditions of Service)
Rules, 1994, is in violation of Articles 14, 15,
16 and 21 of the Constitution of India. It was also stated in
the said letter petition that the Madhya Pradesh High Court granted reservation
for blind and low vision candidates in the Judicial service vacancies of 2021
and therefore, removing such reservation for the present would amount to unjust
discrimination between those selected in the same category before 2023 and
those after. Stating so, the letter petitioner requested this Court to consider
the issue and protect the interests of the visually impaired candidates.
Submissions
on the side of High Court of Madhya Pradesh
12.
It was submitted that the impugned rule viz., clause 6A of the Madhya Pradesh
Judicial Service (Recruitment and Conditions of Service) Rules, 1994 deals with
reservation of posts for PwD in recruitment to the post of Civil Judge (Entry
Level) and the same reads as under:
“6A. 6% posts shall be
horizontally reserved, only at the time of initial recruitment of persons
suffering from locomotor disability including leprosy cured, dwarfism, muscular
dystrophy and acid attack victims, excluding cerebral palsy, as specified
under S.34 of the Rights of Persons with Disabilities Act,
2016 (49 of 2016).
Provided that if such
reserved posts or any of them are not filled in a given recruitment year due to
non-availability of suitable students, such vacancy shall be carried forward
into the succeeding recruitment year and if no suitable candidate is available,
then they shall be treated as unreserved posts.”
When the Madhya
Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules,
2017[For short, “the MPHJS Rules, 2017”]
were being framed, an opinion was sought from the then Dean, Netaji Subhash
Chandra Bose Medical College & Hospital, Jabalpur, (An Autonomous
Government Medical College) District Jabalpur (M.P.) on the suitability of PwD
as stipulated in the RPwD Act, 2016 for the post of District Judge
(Entry Level). The Dean, vide letter no. 6417 dated 04.10.2017 opined that a
person suffering from certain disabilities, such as, being blind or having low
vision, deafness or hard of hearing, cerebral palsy, autism, intellectual
disability, specific learning disability and mental illness and multiple
disabilities under clauses (a) to
(d) of the RPwD
Act, 2016 cannot perform the duties of a Judge in the Higher Judicial
Service. In light of the opinion given by the Dean, the provision providing for
2% reservation to persons suffering from disabilities mentioned in Cl (a), (b),
(c- cerebral palsy only), (d) and (e) of the RPwD Act, 2016 was
proposed to be removed from the MPHJS Rules, 2017. Thereafter, the matter was
referred to the Commissioner, Disabilities in terms of the second proviso
to Section 34 of the RPwD Act, 2016 and as per the exemption given by
the State Government, Department of Social Justice and Disabilities Welfare
Department, the MPHJS Rules, 2017 were published and made applicable with effect
from 13.03.2018. Thus, there is full compliance with the requirements
of Section 34 of the RPwD Act, 2016.
12.1.
According to the learned counsel, the terminology used in second proviso
to Section 34 is ‘regard to the type of work carried out in any
Government Establishment’. The type of work performed by a member of the Higher
Judicial Service (Entry Level) is identical to that carried out by a Civil
Judge (Entry Level). Therefore, it was informed orally by the State authorities
that there was no necessity to obtain separate permission seeking exemption for
the establishment of High Court/District Courts as mere change in nomenclature
of the post does not require separate notification, given that the nature of
work and the establishment remain the same. In view of the said fact that an
exemption has already been granted in favour of the establishment of District
Judiciary by the State Government of Madhya Pradesh in terms of the
provisions contained in Section 34 of the RPwD Act, 2016, without
challenging the vires of the Rules, the letter petition is thus not
maintainable.
12.2.
The learned counsel further submitted that the High Court in its letter dated
23.02.2023 had approved the amendment to increase the reservation for PwD from
4% to 6% in light of Rule 12 of the Madhya Pradesh Rights of Persons with
Disability Rules, 2017 and the said amendment as approved by the State of
Madhya Pradesh, was published in the Government gazette on 23.06.2023.
12.3.
Thus, according to the learned counsel, there is no restriction of any nature
on visually impaired persons to participate in the recruitment examinations for
judicial service. However, the opinion of the medical expert i.e., Dean of
Netaji Subhash Chandra Bose Medical College & Hospital, Jabalpur District,
reflects that a person suffering from the disability stated in clause (a), (b),
(c - cerebral palsy only), (d) and (e) of the RPwD Act, 2016, would not be
able to perform the duties expected of a judge, viz., going through pleadings
of parties, reading case documents, recording oral evidence, assessing the
demeanour of witnesses, facilitating compromise between parties, reading
judicial pronouncements, conducting court proceedings, delivering judgments,
and handling administrative responsibilities. In view of the same, it was felt
that a person with blindness or low vision, deafness and hard of hearing,
autism, cerebral palsy, intellectual disability, specific learning
disability, mental illness, multiple disabilities would not be able to
fulfil the duties and responsibilities required of a judge. Therefore, the
action of the High Court is pursuant to the exemption granted by the State
Government, in accordance with second proviso to section 34(1) of the
RPwD Act, 2016; and the amendment in Rule 6A has a reasonable nexus with the
object sought to be achieved, and is neither discriminatory nor arbitrary in
any manner.
12.4.
It was submitted by the learned counsel that pursuant to the interim order of
this Court dated 21.03.2024, all visually impaired candidates, who secured the
minimum qualifying marks in their respective categories at the preliminary
examination, were permitted to participate in the main examinations conducted
on 30.03.2024 and 31.03.2024. That apart, this Court, in its order dated
07.11.2024 in S.M.W.(C)No.2 of 2024, issued guidelines to be followed by the
High Courts for the selection of candidates belonging to PwD to the District
Judiciary across the country. In compliance with the same, a proposal was
placed before the Rule Making Committee to align the MPJS Rules, 1994.
12.5.
Stating so, the learned counsel submitted that this Court may consider issuing
necessary directions to the respondents permitting individuals with low vision
or visual impairment to avail the benefits of the RPwD Act, 2016, provided
that a medical assessment confirms the fact that their condition is unlikely to
lead to blindness or significant vision loss within a reasonable time
frame - typically 25 to 30 years from the time of recruitment - so as to ensure
that they can work without difficulty throughout their tenure.
A.1
SUBMISSIONS OF DR. SANJAY JAIN – INTERVENOR
13.
According to the learned counsel appearing for the intervenor, the Madhya
Pradesh Judicial Service Examination (Amendment) Act, 2023 violates the right
of the visually impaired persons to participate in the Judicial Service
Examinations. Through various documents filed along with the intervening
application, the learned counsel invited our attention to the recruitment rules
for appointment of Judges from among PwDs prevailing across India. The learned
counsel submitted that out of the 25 High Courts in India, only a few have made
provisions for the reservation of PwDs, which are as follows:
(a) As far as the High
Court of Delhi is concerned, the recruitment is governed by Delhi Judicial
Service Rules, 1970. Rule 22 substituted in 2019 reads as under:
“22. Recruitment made
to the service by direct recruitment shall be subject to provisions regarding
reservation and other concessions (except age relaxation) for the Scheduled
Castes, Scheduled Tribes and Persons with Disability candidates [suffering from
any of the disabilities mentioned in sub section (1) of Section 34 of
the Rights of Persons with Disabilities Act, 2016] as provided by law or
orders issued by the Central Government from time to time.”
(b) As far as High
Court of Madhya Pradesh is concerned, the MPHJS Rules, 2017 was enacted in
supersession of the earlier rules governing the field. Rule 6(2) provides for
2% reservation in favour of persons suffering from locomotor disabilities
excluding those suffering from cerebral palsy. Apart from reservation in
appointments, the High Courts of Delhi and Madhya Pradesh provide for partial
fee concessions and scribe facilities to candidates.
(c) Rule 5 of Himachal
Pradesh Judicial Services Rules, 2004, as amended by the Himachal Pradesh
Judicial Service (2nd amendment) Rules, 2016 provides for a 3% reservation for
PwDs, for the posts of Additional District Judge and Civil Judge.
(d) In Andhra Pradesh,
the reservation for PwDs is quantified such that out of every 100 posts, 54 are
to be made on the basis of open competition, and 3 are to be earmarked for
direct recruitment of physically handicapped persons. Apart from that, upper
age limit for Persons with Locomotor Disability is determined as 45 years.
(e) In Telangana, the
quantum of reservation is same as followed in Andhra Pradesh and the same is
provided only to persons who are Orthopaedically Handicapped, with no upper age
relaxation provided.
(f) The Orissa High
Court also restricts reservation to Orthopaedically Handicapped persons however
the percentage of reservation is only 1%.
(g) The Chhattisgarh
High Court adopts a superimposed conception of disability by providing that 2%
of the posts shall be reserved for the physically handicapped persons having
orthopaedic disabilities subject to a sub-rule stating that ‘the person has
good character and is of sound health and mind and is free from any disability
which renders him unfit for such appointment’.
(h) In the State of
Rajasthan, blind candidates are extended the benefit of reservation under the
Rajasthan Judicial Services Rules, 2010. Rule 36 of the Rajasthan Employment of
Disabled Persons Rules, 2000 mandates 3% reservation for disabled persons, out
of which, 1% must be reserved for persons with low vision/blindness, hearing
impairment or locomotor disability.
(i) The High Court of
Madras vide Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules,
2007 follows the PwD Act 1995 by providing 1% in each category
separately reserved for blind, deaf and orthopaedically handicapped candidates
and the appointment are made in turn and in the order of rotation as specified
in Schedule III-A. The recruitment rules further stipulate that if no qualified
and suitable candidate is available in a particular disability category, the
vacancy may be filled by candidates from other disability categories. The
Government of Tamil Nadu vide Instructions to The Candidates Applying for The
Post of District Judge (Entry Level) By Direct Recruitment in The Tamil Nadu
State Judicial Service dated 01.07.2023 has set out a comprehensive
reservation policy for PwDs. The High Court also provides a complete fee waiver
for the examination however, the notification is silent on the provision of a
scribe facility. It explicitly denies upper age relaxation to PwDs. While
recognising the post of District Judge to be one of the identified posts for
PwDs, the recruitment notification adopts a superimposed conception of
disability. The post of District Judge (Entry Level) has been identified as
suitable for Hard of Hearing / One Arm / One Leg / Both Legs / Leprosy cured /
Dwarfism / Acid Attack Victims (without the assistance of the scribe and with
the assistive device) categories of Differently Abled Persons as per the Rules.
The candidates who are able to perform the following physical activities alone
are eligible as per Rule 10 of Tamil Nadu State Judicial Service (Cadre and
Recruitment) Rules, 2007, as amended in G.O.(Ms) No.234, Home (Courts-I)
Department, dated 03.04.2018:
(a) Work performed by
Sitting – S
(b) Work performed by
Standing - ST
(c) Work performed by
Walking – W
(d) Work performed by
Seeing – SE
(e) Work performed by
Hearing - H
(f) Work performed by
Reading and Writing – RW
(g)
Communicating (Including verbal or nonverbal communication).
(j) As many as 11 High
Courts viz., Jammu and Kashmir, Calcutta, Jharkhand, Sikkim, Uttarakhand,
Manipur, Meghalaya, Allahabad, Karnataka, Bombay and Tripura do not provide for
any reservation or concession to PwDs in the recruitment of Judges.
13.1.
The learned counsel further submitted that Section 32 of the
erstwhile Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, corresponding to Section
33 of the RPwD Act 2016, required the State to identify posts in
establishments that could be reserved for PwDs. Accordingly, an Expert Committee
was set up on 30.12.2010 under the Chairmanship of the Additional Secretary,
Ministry of Social Justice and Empowerment, Government of India to identify
these posts. The Committee submitted its report in 2012, and the list of posts
identified for them under Section 32 of the PwD Act, was published
vide notification dated 29.07.2013. The notification groups various posts into
4 different categories with the post of Judges and Magistrates, specifically
identified under serial number 466 in Group A.
13.2.
It was also submitted that a Division Bench of the Delhi High Court by order
dated 23.08.2006 in W.P.No.9840 of 2006, expressly considered the inclusion of
blind persons for the post of Judges. In view of the same, persons with
blind/low vision were made eligible for reservation to the posts of
Judges/Magistrates in the Delhi Judicial Service. Subsequently, another
Division Bench of the Delhi High Court in W.P No.983 of 2014
titled ‘Nishant S. Diwan v. High Court of Delhi’ decided on 25.03.2014,
extended the benefit of Section 32 of the PwD Act, 1995, to the Delhi
Higher Judicial Service also.
13.3.
It was further submitted that the RPwD Act, 2016 replaced
the PwD Act, 1995 with effect from 19.04.2017. Section
3(3) of the RPwD Act, 2016 prohibits discrimination on the ground of
disability, while Section 20 specifically prohibits discrimination in
matters of public employment. Furthermore, the RPwD Act, 2016 casts a duty on
the State to “appoint” not less than 4 per cent of the total number of
vacancies in the cadre strength in each group of posts from PwD. Commenting
upon the sea change brought about by the RPwD Act, 2016, this Court
in Justice Sunanda Bhandare Foundation v. Union of India vide order
dated 25.04.2017 in I.A. No. 10 of 2015 in W.P. No.110 of 1998, made several
observations relating to the PwD. Thus, according to the learned counsel, while
right to live with dignity has been recognized as an integral facet of the
right to life under Article 21 of the Constitution of India, non-adherence
to the commitment of the State to protect the dignity of PwD under Section
3 of the RPwD Act, 2016 constitutes a serious violation of Fundamental
Rights.
13.4.
The learned counsel submitted that the impugned Rule i.e., clause 6A of the
Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules,
1994, creates a stereotype-based classification between persons with blindness
and low vision and “persons with locomotor disability including leprosy cured,
dwarfism, muscular dystrophy and acid attack victims” entitling the latter to
the benefit of reservation and not the former. Similar to the provision at
issue in Anuj Garg v. Hotel Association of India[(2008) 3 SCC 1] which created a classification between
women and men, and this Court declared the same as unconstitutional, after
having pointed out that ‘the impugned legislation suffers from incurable
fixations of stereotype morality and conception of sexual role; the perspective
thus arrived at is outmoded in content and shifting in means.’ Thus, according
to the learned counsel, Clause 6A proceeds on the stereotypical assumption that
the loss of sight cannot be offset by a PwD consequently perpetuating their
oppression.
13.5.
It was further submitted that the impugned rule is indicative of the ignorance
to what the disabled, when provided appropriate support, could accomplish. Such
ignorance cannot serve as a valid legal basis for sustaining the impugned rule.
Moreover, even if the argument that a blind or low vision judicial officer in
the Madhya Pradesh Judiciary would be unable to effectively discharge
judicial functions, is accepted, the responsibility for this lies with the
High Court administration itself. Rather than outrightly excluding an entire
class of citizens from the reservation to which they are statutorily entitled,
the appropriate response should have been to identify and address the specific
challenges that hinder their full participation. Such an approach would
encourage constructive solutions to remove or mitigate these barriers, paving
the way for greater inclusivity in the future. In keeping with the shift from
the medical model of disability to the social model, which this Court has
repeatedly recognized, the focus must not be on how the disability itself
creates obstacles but rather on how the societal / institutional barriers
prevent full and equal participation of PwDs and how these barriers can be
effectively dismantled.
13.6.
The learned counsel also contended that the very same argument which is now
being advanced by the Madhya Pradesh High Court was accepted by a Division
Bench of the Madras High Court in V. Surendra Mohan v. State of Tamil Nadu[(2015) 4 Madras Law Journal 513] ,
which was also affirmed by this Court in V. Surendra Mohan v. State of
Tamil Nadu[(2019) 4 SCC 237] . However,
in Vikash Kumar v. Union Public Service Commission and others[(2021) 5 SCC 370], this Court overruled
its previous judgment in Surendra Mohan (supra), wherein, the issue
was relating to the decision of the Tamil Nadu Public Service Commission ("TNPSC") in imposing a
ceiling of 40-50% visual/hearing impairment as the eligibility criterion for
appointment as a Civil Judge (Junior Division); the Appellant therein, who had
visual impairment of 70%, was rendered ineligible by virtue of this ceiling;
the Madras High Court had upheld this ceiling. When the matter was taken up by
this Court, a two-judge bench affirmed the Madras High Court’s view by holding
that a judicial officer in a State has to possess reasonable faculties of
hearing, sight and speech in order to hear cases and write judgments and
therefore, the impugned ceiling created a legitimate restriction. However,
in the later judgment in Vikash Kumar (supra), this Court held that
the ratio in Surendra Mohan was flawed as the said judgment had been
delivered after India became a party to the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD) and enacted the RPwD Act,
2016, both of which recognize the principle of Reasonable Accommodation (“RA”). This Court
further held that the view in Surendra Mohan (supra) had failed
to consider, whether the appellant would have been able to discharge the duties
of a Civil Judge (Junior Division), after being provided the reasonable
accommodation necessitated by his disability. This Court further
held that RA, by definition, has an “exhortatory dimension” and requires
going the extra mile to accommodate PwDs and an institution cannot refuse to
provide RA on the ground that providing the same would cause avoidable complications.
This Court also held that an RA analysis required “a consideration of the
specific accommodations needed, the cost of providing them, reference to
the efficacy with which other Judges with more than 40- 50% visual/hearing
impairment in India and abroad can discharge judicial duties after being
provided the necessary accommodations, amongst other
factors”. Furthermore, in Jeeja Ghosh and Ors. v. Union of India and
Ors. [(2016) 7 SCC 761], this Court
recognized the principle of reasonable accommodation as being a component of
the constitutional equality guarantee. Thus, according to the learned counsel,
the impugned rule is violative of the principle of RA.
13.7.
The learned counsel also pointed out that able-bodied judges routinely resort
to the support of staff members to perform their obligations effectively. This
includes court masters/stenographers, to whom judges dictate their orders and
judgments. It also includes secretarial staff and judicial law clerks, who are
responsible for assisting the judge with tasks such as management of files,
making synoptic notes of the cases in that judge’s court and research
assistance. At the highest, all that can be said is that a judge with a
disability will need some extra human support. However, that does not, ipso
facto, translate into greater loss of secrecy. Judges with disabilities must be
trusted with the ability to exercise their discretion, to determine how they
can discharge their functions in a way that helps preserve secrecy. Human
support, coupled with technological solutions, can facilitate the effective
participation of blind and low vision judges in our judicial system. Therefore,
the notion that these judges cannot be effectively accommodated stems more from
the mental block that this is beyond the realm of possibility than from the
logistical challenges in getting this done.
13.8.
Furthermore, the learned counsel submitted an interview series titled ‘It Can
Be Done’ featuring 21 interviews of legal professionals with disabilities from
six jurisdictions, published by Rahul Bajaj, Anusha Reddy and Madhavi Singh,
discussing RA for PwDs. Additionally, he also cited real world examples of
successful judges with disabilities, few of whom are as follows:
(i) T. Chakkaravarthy
from Tamil Nadu, who was appointed as III Additional District Munsif in
Coimbatore in the year 2009, lost his eyesight due to smallpox at age 4.
(ii) Brahmananda
Sharma, who in 2013 secured rank 83 in the Rajasthan Judicial Service
Examinations and is presently working as a Civil Judge and Judicial Magistrate
of Sarwar in the city of Ajmer District, lost his eyesight due to glaucoma at
the age of 22.
(iii) Ms. Helen
Keller, the deaf-blind disability rights activist, was appointed for a
nine-year term as a judge of the European Court of Human Rights in 2011.
Since 2020, she has held the esteemed position of an international judge
at the Constitutional Court of Bosnia and Herzegovina.
Despite their
respective disabilities, there was no evidence to suggest that they were unable
to perform their judicial duties effectively.
13.9.
By way of reply to the submissions made on the side of the High Court of Madhya
Pradesh, the learned counsel submitted that the approach of the High Court in
seeking the opinion of the Dean Medical College, Jabalpur, reflects a closed-
minded stance and an inherent bias against individuals who are blind or have
low vision, are deaf or hard of hearing, or have cerebral palsy, autism,
intellectual disabilities, specific learning disabilities, mental illness, or
multiple disabilities. The learned counsel argued that the High Court, in
effect, framed a leading question to elicit a predetermined response from the
Dean. Consequently, the Dean rendered his opinion in a non-speaking order,
devoid of any legally tenable rationale or justification. The assumption that
blindness necessarily impairs the performance of judicial duties is rooted in
the outdated Medical Model of disability, which conflates impairment with
disability. While impairment pertains to a bodily or mental condition,
disability arises from the interaction of impairment with external barriers, be
they physical, socio-economic, political, or cultural. The denial or failure to
provide reasonable accommodation effectively deprives individuals of an
appropriate environment, amounting to a violation of Sections 3(2)(3), and
(5) of the RPwD Act 2016 read with Articles
5(3) and 2 of UNCRPD. Exclusion of Blind Persons from Judiciary
amounts to both de jure and de facto equality as the exclusion is not in
furtherance of any legitimate State interest, rather it amounts to denial of
representation of Blind persons in the Judiciary without following due process
of Law.
13.10.
The learned counsel further submitted that both Rule 6 A and the exemption
sought by the High Court are unconstitutional as they violate Articles
14 and 16(1) read with Section 3 of the RPwD Act 2016.
Rule 6 A is unconstitutional as it is innocent to the principle of RA and the
exemption is vitiated as the State Commissioner for Disability has mechanically
adopted the opinion of the Dean, Medical College Jabalpur, which did not
account for and rather overlooks the decision of the Union Government through
notification dated 04.01.2021 which identifies ‘Posts of judges, Magistrates
subordinate judiciary’ as suitable for PwD including Blind Persons. This said
classification is not based on intelligible differentia and does not have any
nexus with the purpose sought to be achieved by the High Court. Besides, Rule 6
A is also in violation of International Principles and Guidelines on Access to
Justice for Persons with Disabilities 2019. Para 7.1 of these guidelines reads,
“The right to equal access to justice requires that persons with disabilities
have the opportunity to participate directly in adjudicative processes and be
involved in various roles in the administration of justice on an equal basis
with others. States should ensure that persons with disabilities are able
to act as judges, lawyers, prosecutors, witnesses, jurors, experts and court
officials in the justice system without discrimination.” In this connection,
para 7.2(b) also reads, “Remove all disability-related barriers, including
laws, that prevent persons with disabilities from being judges or jurors or
serving in any other justice related positions”. The learned counsel submitted
that these guidelines are in direct response to and serve as a catalyst
for Article 13 of the UNCRPD, which guarantees the right of PwDs to
access justice. The learned counsel also invited the attention of this Court to
the Vienna Convention on the Law of Treaties, 1969 (VCLT), which has assumed
the status of customary law thereby, restraining the State from exercising
power in contravention of its treaty obligations.
13.11.
Finally, the learned counsel submitted that in order to foster justice for
PwDs, Society must abandon negative ontology of disability. The quest for
epistemology to eliminate inequality and to ameliorate the overall state of
PwDs must be driven by the virtue of respect for difference. Besides, criteria
for assessment of competence should not be influenced by Ableist and
paternalistic considerations. To combat injustice and to promote inclusivity
for PwDs, the idea of ‘Nothing about us without us’ has to be countenanced by
assigning appropriate value to lived experiences of PwDs.
B.
IN RE: RECRUITMENT OF PwD CANDIDATES IN RAJASTHAN JUDICIAL SERVICE
[S.M.W.(CIVIL) No.6 of 2024]
14.
This suo motu writ petition arises from a letter sent by a visually challenged
law student to the Hon’ble Chief Justice of India, complaining about lack of
transparency in Judicial Service Examinations for PwD candidates in Rajasthan.
According to him, while the Rajasthan Public Service Commission consistently
mentions reserved posts for PwD in its examination notifications as mandated by
Rule 10 of the Rajasthan Judicial Service Rules, 2010, the final results
published by the High Court of Rajasthan fail to reflect any such reservations.
It was further stated that the High Court of Rajasthan justifies this practice
by citing ‘horizontal’ reservation for PwD candidates and claiming that
separate cut-offs are unnecessary. However, it was submitted that reservations
for women, widows, divorcees among others, which are horizontal reservations,
are provided with separate cut-off marks. Therefore, the letter petitioner has
requested this court to intervene in this matter and uphold justice and
equality.
15.
The respondents are the High Court of Rajasthan and the Government authorities.
During the pendency of the aforesaid suo motu writ petition, one Rekha Sharma
filed an application seeking permission of this Court to intervene in this
matter. In her affidavit, she stated that on 09.04.2024 the High Court of
Rajasthan at Jodhpur issued an advertisement for Civil Judge Cadre,
wherein out of the total 222 vacancies, 9 posts were reserved for PwBD
candidates. The applicant, who has a 40% permanent physical disability in her
eyes, appeared in the preliminary examination and qualified for main
examination under the category of PwBD. In the main examination, the applicant
secured 109 marks out of 300, which is about 36.3% of the total marks and 40.5
marks out of 100 in Law Paper-I and II, which is about 40.5%.
16.
The applicant further stated that as per Clause 23 of the advertisement, a PwBD
candidate would be deemed to be eligible for the interview, if he has obtained
minimum 30% marks in each Law Papers and 35% marks in aggregate in the Main
Examination. In the case of the applicant, she had secured more than 30% marks
in each Law Paper and 35% marks in aggregate in the Main Examination, however,
she was not called for the interview. In the said circumstances, the applicant
submitted that she is a necessary party and would be affected by the order, if
any, passed in this case. Therefore, she has filed the present application.
C.
AYUSH YARDI VS. STATE OF MADHYA PRADESH AND OTHERS
[SLP
(C) No.12179 of 2024]
17.
According to the appellant, he is a person with Benchmark Disability and suffers
from Thalassemia, which results in physical weakness and fatigue and requires
regular blood transfusions among other challenges. He, along with other
candidates, challenged the amendment to the Madhya Pradesh Judicial Service
(Recruitment and Conditions of Service) Rules, 1994 dated 23.06.2023 as well as
the consequential advertisement dated 17.11.2023 issued by the High Court of
Madhya Pradesh. The amendment proposed to substitute Rule 7, which prescribes
the eligibility criteria to appear in the preliminary examination of the Madhya
Pradesh Judicial Service examination i.e., in addition to basic requirements,
such as citizenship of India, L.L.B. Degree etc., a candidate must also meet
the requirement of 3 years of practice at the bar or pass in all examinations
in the first attempt, with an aggregate score of at least 70% in case of
general and other backward class categories and 50% in case of SC/ ST
categories. Further, the advertisement dated 17.11.2023 clarified that to
qualify for the exemption from the 3-year practice requirement, a candidate
must have passed all examinations without appearing in a supplementary
examination or availing of the Allowed to Keep Terms (ATKT) provision.
18.
The appellant secured an aggregate of 67% in his L.L.B. degree, but was unable
to clear his first semester on the first attempt due to his disability, and as
a result of the same, he had to appear for a supplementary examination under
ATKT. Consequently, the amendment rendered him ineligible to participate in the
judicial service examination. Therefore, he filed W.P.No.30465 of 2023 to set
aside the said amendment and advertisement, insofar as it fails to provide any
relaxation of the rules for PwD candidates. The High Court dismissed the writ
petition filed by the appellant as well as other writ petitions, by order dated
01.04.2024 which is impugned herein.
Submissions
of the learned counsel for the appellant
19.
The learned counsel submitted that in order to be eligible to write the exam, a
candidate must have either completed three years of practice or obtained more
than 70% marks in the first attempt while doing their law course, in which
case, they are exempt from the three compulsory years of practice. While this
rule has been relaxed for candidates belonging to the SC and ST Category, no
such relaxation has been given to the persons with disabilities. Resultantly,
the appellant, who obtained an aggregate of 67% and suffers from 40%
disability, is no longer eligible to participate in the selection process.
Hence, the appellant challenged the amended rule on the ground that
specially-abled candidates ought to have been given relaxation. However,
the High Court upheld the amended rule and dismissed the batch of writ
petitions. In doing so, it failed to examine the amendment in the context of
persons with disabilities and treated the appellant’s challenge on par with
that of fully abled candidates.
19.1.
According to the learned counsel, the uniform application of a cut-off rule of
70% marks in the first attempt to all candidates is arbitrary and irrational.
Different colleges and universities have different marking schemes. Even the
highest scoring candidates from top law schools, such as, Faculty of Law, Delhi
University and National School of India University, Bengaluru, might not be
able to meet this criterion. Applying this criterion to all candidates
including persons with disabilities is unfair and arbitrary. As far as fully
abled candidates are concerned, the consequence of not meeting this eligibility
criterion is that they can acquire eligibility to participate in the selection
process after completing three years of practice at the bar. However, this may
not be a viable option for persons with disabilities. Most public places,
including Court rooms and Court complexes are not disabled friendly, lacking
infrastructural facilities making it difficult for persons with disabilities,
particularly those with visual impairments, mobility impairments or other
benchmark disabilities, to practice.
19.2.
It was further submitted that for the appellant, who suffers from Thalassemia,
practicing in Courts would be physically strenuous and extremely challenging
and therefore both limbs of the proviso to the eligibility criteria, i.e.,
passing all papers on the first attempt or securing an aggregate score of 70%,
should not be made applicable to persons with disabilities. A physically
disabled candidate may not be able to cope up with the physical levels of
activity required by an advocate, such as walking, climbing stairs, carrying
heavy files etc., but may still have the mental ability to perform judicial
duties, which do not require the same level of physical exertion. In the
circumstances, the learned counsel submitted that insisting on 3-year practice is
unfair in respect of candidates with benchmark disability, who may not have
secured 70% in aggregate, or had to take a supplementary examination,
especially if the latter resulted from their disability. The proviso is
therefore discriminatory and arbitrary as it treats the unequals equally
thereby violating Article 14 of the Constitution of India.
19.3.
Therefore, it was contended that the amended Rule 7 and the consequential
advertisement dated 17.11.2023 are arbitrary, unconstitutional and liable to be
set aside, insofar as they do not provide a specific exemption for persons with
disabilities and all persons with disabilities, who are otherwise qualified
(such as, possessing L.L.B., etc.) should be permitted to appear in the
preliminary examination, without insisting on the requirements of the proviso
to Rule 7 of Madhya Pradesh Judicial Service (Recruitment and Conditions
of Service) Rules, 1994.
Submissions
of the learned counsel for High Court of Madhya Pradesh
20.
According to the learned counsel, the Special Leave Petitions viz., SLP(C)
No.9570 of 2024 titled ‘Garima Khare v. High Court of Madhya Pradesh’
and SLP (C) No.9885 of 2024 titled ‘Tejas Tripathi v. State of Madhya Pradesh’
filed against the same order impugned herein, have been dismissed by this Court
vide Orders dated 26.04.2024 and 03.05.2024 respectively.
21.
As far as the present appellant is concerned, the learned counsel submitted
that the appellant participated in the selection process for the post of Civil
Judge (Junior Division) for the year 2023, pursuant to the order of this Court
dated 15.12.2023 in SLP(C) No.27337 of 2024 and cleared the preliminary
examination. Thereafter, pursuant to the interim order dated 21.03.2024 passed
by this court in S.M.W.(C) No.2 of 2024, the High Court of Madhya Pradesh vide
order dated 21.03.2024 in WP (C) No.7452 of 2024 permitted all persons with
disabilities candidates to participate in the main examination, provided they
secured the minimum qualifying marks / minimum benchmark in their respective
categories. Consequently, out of 35 PwD candidates, 31 candidates including the
appellant herein, appeared in the main written examinations held on 30.03.2024
and 31.03.2024; and the result of the same for Civil Judge Junior Division
(Entry Level), 2022, was declared on 10.05.2024. While so, this court by order
dated 21.05.2024 in SMW(C) No.2 of 2024, directed that if any of these 31
candidates had secured the requisite minimum marks prescribed for reserved
(SC/ST) candidates, they shall be called for interview, subject to the outcome
of the proceedings. Accordingly, only one candidate, out of 31, became eligible
for the interview, in terms of the order dated 21.05.2024. The appellant did
not obtain the minimum benchmark for SC/ST category i.e., securing 45 marks in
each paper, and thus was not called for interview. However, this court vide
order dated 28.05.2024 in SLP(C) No.12179/2024, directed the appellant to
appear for the interview for selection of Civil Judge (Jr. Division). Following
this, the High Court of Madhya Pradesh preferred an application being
I.A.No.135745 of 2024 seeking clarification of the order dated 28.05.2024
stating that the appellant could have been permitted to participate in the
interview only if he had secured the minimum qualifying marks for reserved
(SC/ST) candidates in the main examination i.e., 45% marks in each paper; there
was no specific direction in the order dated 28.05.2024 with respect to minimum
qualifying marks, except referring to its earlier order dated 21.05.2024 passed
in S.M.W.(C).No.2 of 2024, and the application is pending consideration before
this court. Thus, according to the learned counsel, since the appellant has not
secured the aforesaid benchmark, allowing him to participate in interview
will cause prejudice to other remaining specially- abled candidates and is also
likely to cause anomaly for future selection.
D.
ALOK SINGH VS. STATE OF MADHYA PRADESH AND OTHERS
[SLP(C)No.7683
of 2024]
22.
According to the appellant, he is a person with disability having 40% permanent
low vision. It is his grievance that despite securing higher aggregate marks
(written examination and interview) than two other selected candidates in the
Physically handicapped category, the appellant was not selected for recruitment
to the post of Civil Judge, Junior Division (Entry Level) in the 2021
Examination conducted by the Madhya Pradesh High Court, since in the interview
he secured slightly lower qualifying marks. According to him, the requisite
relaxations as mandated under the RPwD Act, 2016 were not applied,
leading to the carrying forward of vacant seats for the persons with
disabilities year after year, denying the appellant his rightful selection and
also defeating the purpose of the RPwD Act, 2016. Therefore, he preferred
W.P.No.11175 of 2023 assailing the final result dated 18.02.2023 of the
Government of Madhya Pradesh insofar as it relates to his non- selection to the
vacant post under the Unreserved Category of the Physically Handicapped Quota
for the post of Civil Judge, Junior Division (Entry Level). The High Court
dismissed the said writ petition, by judgment and order dated 11.01.2024
impugned herein.
Submissions
of the counsel for the appellant:
23.
The learned counsel submitted that the advertisement issued by the High Court
of Madhya Pradesh for recruitment to the post of Civil Judge, Junior Division
(Entry level) provided for a 4 percent quota for PwD under Section
34 of the RPwD Act, 2016. The appellant applied for the said post and
having qualified in both the preliminary and main examinations, proceeded for
the interview process. However, his name did not find place in the final result
of the Notification dated 18.02.2023, despite the availability of vacant posts
under the Physically Handicapped (PH) quota. According to the learned
counsel, Section 34 of the RPwD Act, 2016 stipulates that vacant
posts reserved for PwDs can be carried forward or filled by candidates from
other categories in case of backlog only when no eligible PwD candidate is
available. In the present case, the appellant secured 18.1 marks out of 50 in
the interview – falling short by less than 2 marks from the minimum qualifying
requirement of 20 marks (i.e., 40% of 50 marks). Therefore, it was submitted that
the appellant should have been accommodated for appointment by respondent Nos.3
and 4, rather than the post being left vacant and carried forward.
23.1.
The learned counsel further contended that in light of section 34 of
the RPwD Act, 2016, the Central Government, vide its office memorandum dated
15.01.2018 issued directions for relaxation of standards of suitability in the
case of PwBD candidates. Further, clause 11 of the said Office Memorandum
reinforces this by stating that there should be relaxation of standards of
suitability where sufficient number of candidates from benchmark disabilities
are not available. In Union of India v. National Federalism of the
Blind[(2013) 10 SCC 772] , this
Court in paragraphs 51, 52 and 54 observed that the State Governments as well
as the Union Territories have a categorical obligation under the Constitution
of India and under various International Treaties relating to human rights in
general and treaties for disabled persons in particular, to protect the rights of
disabled persons. Further, this Court directed the authorities to issue orders
modifying the Office Memorandum impugned therein and the subsequent Memorandums
to compute the number of vacancies available for the disabled persons within a
stipulated time and also directed implementation of the directions issued
therein. It was further observed that non-compliance with the reservation
scheme for persons with disabilities should be treated as an act of
non-obedience, and the Nodal Officer of the concerned Department, Public Sector
Undertaking, or Government Company is responsible for its strict
implementation. In the present case, out of 7 seats, only 2 were filled.
Therefore, the standards should have been relaxed to accommodate the
appellant considering his disability and eligibility, and the action of the
fourth respondent denying appointment to the appellant for the post of Civil
Judge, Junior Division (Entry Level) based on the criteria of minimum cut-off
marks in the interview under the PH quota under Unreserved Category, despite
there being vacant posts, is perverse and arbitrary. It was specifically
submitted that even though the appellant secured 237.85 marks eligible for
selection, he was not selected, rather a candidate securing 218.78 marks (bearing
Roll No.1028) was selected. If the appellant is not granted the benefit of
relaxed standard, it would only be a sheer violation of Articles 14,
16 and 21 of the Constitution of India and would also defeat the
purpose of RPwD Act, 2016 as the office memorandum was drafted only
to meet the ends of the RPwD Act, 2016.
23.2. The
learned counsel submitted that the impugned High Court order dated 11.01.2024
ought to have been set aside for failing to consider the entitlements under
the RPwD Act, 2016. It was contended that the 2021 recruitment process
violated the RPwD Act, 2016 and did not adequately provide for
persons with disabilities. The impugned order, at paragraph 8, states that the
appellant cannot avail the benefit of the RPwD Act, 2016 as his
disability—low vision—would have no bearing on the interview, since he was
merely required to answer questions. The learned counsel refuted this
reasoning, relying on the decision in Vikash Kumar (supra), wherein
this Court held that Persons with disabilities can effectively discharge their
duties if reasonable accommodations are made for them. The said judgment
further emphasized the State’s obligation to ensure their full and effective
participation in society. Thus, it was argued that the High Court erred in holding
that the appellant’s disability had no impact on the interview and that he was
not entitled to any relaxation.
23.3.
It was further submitted that the minimum qualifying marks should not be
imposed in viva voce examination for entry level selection, such as, the post
of Civil Judge. In support of the same, he placed reliance on the decisions of
this Court in
(i) Dr.Kavita Khamboj
v. High Court of Punjab and Haryana and others[(2024) 7 SCC 103 (3 Judge Bench)] , in which it was stated
that ‘viva voce examination may not apply for entry-level junior officers’ and
(ii)Abhimeet Sinha and
Others v. High Court of Judicature at Patna and others[(2024) 7 SCC 262], wherein, while upholding the distinction
between recruitment at the entry-level and higher level, it was pointed out
that ‘interview or viva voce examination alone may not be a holistic criteria
to gauge eligibility’. Since the present recruitment pertains to Civil Judge,
Junior Division (Entry Level), prescribing a minimum viva voce cut-off unfairly
disadvantage candidates, leading to anomalies, such as, the appellant’s case,
where despite a higher aggregate score, he was not selected. It was also
submitted by the learned counsel that before 2018, there was no
prescription of minimum marks for the viva voce component of the recruitment,
which would indicate that due consideration was given to the perils of
prescribing such stringent criteria for entry-level recruitment in the
subordinate judiciary, particularly after the candidates have cleared the
stages of the preliminary and written examinations only to falter at the last
stage of viva.
23.4.
It was ultimately submitted that presently, there are 6 seats from the PH
category that have been carried forward from the 2021 recruitment and
recruitment for the 2022 year has not been completed. In the 2022 main
examination declared on 10.05.2024, no eligible candidate in PH category could
secure qualifying marks to appear in the interview. Thus, the unfilled PH seats
for the 2022 selection and those carried forward, will again be carried forward
to the next year. Therefore, the appellant being entitled to the relaxation and
fully meritorious, ought to be accommodated against these available PH seats as
a Civil Judge. Submissions of the learned counsel for High Court of Madhya
Pradesh
24.
According to the learned counsel, totally four posts were reserved for
physically handicapped persons under the unreserved category. The appellant got
qualified in the preliminary examination and was also successful in the main
examinations. As per the selection criteria in the advertisement dated
21.12.2021, there was a requirement to secure minimum 40% marks in the
interview to be eligible for consideration. Accordingly, a candidate
securing 20 or more marks in the interview was alone eligible for consideration
for appointment. Since the appellant secured 18.1 marks out of 50 in the
interview, and thus was not considered for appointment.
24.1.
It was further submitted that the contention of the appellant that he is
entitled to the benefit of Section 34 of the RPwD Act, 2016 and also
for relaxation in standard of suitability in terms of Clause 11 of the office
memorandum dated 15.01.2018 issued by DoPT, was rejected by the High Court on
the ground that the appellant failed to achieve the minimum qualifying marks in
the interview; and that, he was well aware of the criteria for the process of
selection before participation and hence, cannot be permitted to challenge the
same, having remained unsuccessful. It was also submitted that fixation of
minimum marks in the interview for a judicial officer has been upheld by this
Court in Kavita Kamboj (supra) and Abhimeet Sinha (supra)
and therefore, the only issue to be decided in this matter is, whether the
appellant is entitled for relaxation of standards in suitability and if so, to
what extent.
24.2.
Referring to Section 34 of the RPwD Act, 2016 and Clause 11 of DoPT
Circular dated 15.01.2018, the learned counsel submitted that firstly, the
Office Memorandum is applicable only qua the posts and services of the Central
Government and thus, not applicable in the present case and secondly, what
is required to be borne in mind is that in any selection process there may
be two benchmarks, first to become eligible for selection, and second would be
a cut off arrived at based on the performance of the candidates. For selection,
a candidate must not only secure the minimum marks, making him eligible for
selection, but should also be above the cut off. In the case on hand, the
appellant did not secure the required 20 marks in the interview for becoming
eligible for selection and hence, his candidature cannot be considered for
selection although he may have secured more marks than the selected candidates
in the main examinations. The learned counsel also submitted that 1 candidate
with locomotor disability and 1 candidate with low vision disability, i.e.,
total 2 candidates with disabilities in the unreserved category secured more
than the minimum marks in the interview and were duly selected in the 2021
examination. Hence, the reliance placed by the appellant on Section 34
(2) of the RPwD Act, 2016 is also misplaced, inasmuch as mere availability
of the appellant was not sufficient, and he was not eligible for selection,
since he had not secured the minimum marks in the interview. Since other
candidates with benchmark disabilities (including a candidate with low vision)
were duly selected in the selection process, the appellant cannot claim any
violation of Articles 14, 16 & 21. That apart, no separate
cut-off/relaxation for PwBD candidates or any other class of candidates has
been provided in the original advertisement dated 21.12.2021 or any of the
circulars issued by the High Court with regard to selection procedure for
Civil Judge, Junior Division (Entry Level). Even this Court, in its order
dated 07.11.2024 passed in S.M.W (C) No.2 of 2024, issued guidelines to be
followed by the High Courts for the selection of PwBD candidates to the
District Judiciary across the country. Notably, even within these guidelines,
this Court did not mandate the selection committee to lay down a separate
benchmark or minimum cut-off for persons with disabilities’ candidates at the
interview stage. Therefore, the High Court has not committed any error in
passing the impugned judgment which need not be interfered by this court.
E.
MANVENDRA SINGH RATHORE AND ORS. VS. HIGH COURT OF RAJASTHAN AND
ORS. [W.P.(C) No.484 OF 2024] & ALISHA KHAN VS. HIGH COURT OF
RAJASTHAN AND ORS [W.P(C) No.494 of 2024]
25.
The Petitioners in the present set of writ petitions were candidates in the
Rajasthan Judicial Service Examination, 2024. The Respondent No.1 vide
notification dated 09.04.2024 announced the Civil Judge Cadre Direct
Recruitment Examination, 2024, specifying 222 vacancies across the years, i.e.,
83 posts in 2022, 57 posts in 2023, and 82 posts in 2024 and a total of 9 posts
were reserved for PwBD i.e., Blindness and Low Vision – 2 seats, Deaf and Hard
of Hearing – 3 seats, Locomotor – 2 seats and Autism – 2 seats with horizontal
reservation across total vacancies. Further, persons with disabilities’
candidates needed to secure a minimum of 40% marks in the Preliminary
Examination to qualify for the Main Examination. Clause 23(ii) of the
notification stated that the number of candidates admitted to the Main
Examination would be fifteen times the total vacancies (category-wise),
ensuring that all candidates securing the same percentage as the last cut-off
would be included. Therefore, applying the same, a total number of 135 PwD
candidates across all vertical classifications ought to have been selected for
the main examination. However, only 11 PwD candidates were selected for the
main examinations. Moreover, the Respondent No.1 at the time of declaring the
result vide notice dated 15.07.2024 for the preliminary examination, failed to
identify any specific cut-off for PwD candidates, thus making it
unascertainable to determine the lowest score at which a PwD candidate was
declared qualified for the main examination. In contrast, cut-offs were clearly
mentioned for other horizontal reservation categories such as women, divorced
candidates, and widows. The petitioners assert that the omission by Respondent
No.1 has left them and other PwD candidates without clarity regarding their
selection for the Main Examination. Consequently, they have filed the present
writ petitions seeking appropriate directions to Respondent No.1 to declare the
results separately for PwD candidates and additionally specify the cut-off
marks for their category. They contend that this failure violates their
constitutional and statutory rights to a fair selection process
and deprives them of a legitimate opportunity to be considered for the
seats reserved for their category in the Rajasthan Judicial Service
Examination, 2024.
Submissions
on the side of the Petitioners:
26.
It was submitted that instead of declaring a separate cut-off for PwD
candidates, the first respondent applied the cut-off for the respective
vertical category of each PwD candidate, essentially making PwD candidates
compete with the candidates of their respective vertical categories, thereby
defeating the very purpose of reservation. In fact, one of the candidates in
the PwD category scored 72 marks in the Preliminary Examination but was not
allowed to participate in the Main Examination as the cut-off for his vertical
category, viz., General Category was 73 marks. Such an approach is in direct
violation of Rule 11(4) of the Rights of Persons with Disabilities Rules, 2017
and Rule 5 of the Rajasthan Rights of Persons with Disabilities Rules, 2018,
which categorically states that vacancies for PwD candidates would be
maintained as a separate class. Therefore, the cut-off for PwD candidates
against such “separate class” of vacancies ought to have been declared
separately. In this regard, the learned counsel drew the attention of this
Court to Clause 15(iii) of the Notification dated 09.04.2024 which states that
selected PwD candidates would be adjusted to their respective categories.
26.1.
The learned counsel further submitted that in an identical case in Writ
Petition(C)No.710 of 2024 titled ‘Siddharth Sharma v. High Court of
Rajasthan & Ors.’ this Court vide order dated 24.10.2024, allowed the
petitioner therein (a blind PwD candidate) to appear in the interview round of
the Rajasthan Judicial Service Examination, 2024, considering the fact that the
selection process had not been undertaken properly. In view of the same,
in another case in Writ Petition (C) Diary No.49998 of 2024 titled ‘Tishan
Jangid v. High Court of Judicature for Rajasthan & Anr.’, this Court vide
interim order dated 25.10.2024, allowed the petitioner therein (suffering from
60% locomotor disability) to participate in the interview round of the
Rajasthan Judicial Service Examination, 2024. Thus, only a total of 2
candidates who obtained interim relief from this Court, got the opportunity to
appear in the interview round and finally secured the seats against the
vacancies as per the result dated 27.10.2024; and the remaining reserved seats
for PwD candidates were converted to general category seats and were filled
accordingly. The said appointment was also confirmed by this Court vide final
order dated 07.11.2024. Due to the erroneous approach of the first respondent
in the selection process from the stage of Preliminary Examination itself,
sufficient and correct number of PwD candidates could not be selected in the
subsequent rounds, thereby resulting in the non-fulfilment of the vacancies
reserved for them. Consequently, individuals with vastly different abilities
were compelled to compete under a single category, causing a substantial
number of eligible PwD candidates to be eliminated from the selection process
and since they were required to compete with fully-abled candidates in their
respective vertical categories, the selection process was contrary to the
spirit of the Constitution and the RPwD Act, 2016.
Submissions
made by the learned counsel for Rajasthan High Court:
27.
According to the learned counsel, the petitioners participated in the Civil
Judge Cadre Direct Recruitment Examination, 2024 in pursuance of the
advertisement dated 09.04.2024 and appeared in the Preliminary Examination
conducted on 23.06.2024. Since the petitioners could not secure the qualifying
marks for the main examinations, they have preferred the present writ
petitions.
27.1.
Adding further, the learned counsel submitted that during the pendency of the
Writ Petitions, Main examinations for the Civil Judge Cadre were conducted on
31.08.2024 and 01.09.2024 and the result of the same was declared on
01.10.2024. Thereafter, interview was conducted between 16.10.2024 and
26.10.2024 and the merit-wise list of 222 selected candidates was declared on
27.10.2024 with corrigendum on 07.11.2024.
27.2.
Continuing further, it was submitted that the reservation for PwD candidates is
provided in Rule 10 of the Rajasthan Judicial Service Rules, 2010, as per
which reservation of vacancies for persons with benchmark disabilities in
the recruitment to the judicial service shall be in accordance with the rules
of the State as amended from time to time. Hence, it was pointed out that the
Notification dated 16.03.2024 introduced an amendment to the Rajasthan Judicial
Service Rules, 2010, providing relaxation in age and a concession of 5% in
marks in favour of persons with benchmark disabilities’ candidates.
27.3.
It was further submitted that the issue regarding declaring separate cut-off
marks for the persons with benchmark disabilities arose in the context of
recruitment to Civil Judge Cadre in the State of Rajasthan in C.A.Nos.5051/2023
and 5052/2023 and this Court, vide judgment dated 21.08.2024 observed as
follows:
“15…. The respondents
therefore in the notice declaring result of Preliminary Examination had rightly
shown the cut off marks for all the categories except for the category of
persons with benchmark disabilities. The Persons with benchmark disabilities
for being adjusted in the category for which he or she had applied, had to
secure the minimum cut off marks fixed for such category under which he or she
had applied. Such fixation of cut off marks for other categories and
non-fixation of cut off marks for the category of persons with benchmark
disability could neither be said to be arbitrary nor violative of any of the
Fundamental Rights of the appellants.”
Therefore,
according to the learned counsel, no relief can be granted to the petitioners
in the 2024 Civil Judge Cadre recruitment process. Reply of the learned
counsel for the petitioners
28.
The learned counsel submitted that in the judgment dated 21.08.2024 rendered by
this Court in Civil Appeal Nos.5051 of 2023 and 5052 of 2023, which has been
relied upon by the first respondent, it was observed that non-fixation of cut
off marks for persons with benchmark disabilities’ candidates did not amount to
a violation of fundamental rights. However, it is pertinent to note that the
factual matrix in the aforementioned Civil Appeals was distinct, as no separate
minimum qualifying marks had been allocated for persons with benchmark
disabilities’ candidates in that case. It was also submitted that subsequent to
the aforesaid judgment, a three-judge bench of this Court has passed an order
dated 07.11.2024 in S.M.W.(C)No.2 of 2024 laying down general guidelines for
the governance of selection of candidates to the district judiciary across the
country. Therefore, the learned counsel prayed for appropriate orders to be passed
in these writ petitions.
IV.
ISSUES THAT ARISE FOR CONSIDERATION
29.
The questions that need to be addressed have been outlined in the pleadings and
submissions made by the learned counsel. While discussing and analysing them,
there may be overlapping or intersectional aspects, making it rather necessary
to address all the issues collectively. However, for clarity and a structured
understanding, conclusions will be stated issue-wise.
29.1.
The following issues arise in the cases on hand:
i. Whether visually
impaired candidates can be said to be ‘not suitable’ for judicial service?
ii. Whether the
amendment made in Rule 6A of Madhya Pradesh Judicial Services (Recruitment and
Conditions of Service) Rules, 1994 falls foul of the constitution?
iii. Whether proviso
to Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of
Service) Rules, 1994 violates the equality doctrine and the principle of
reasonable accommodation? iv. Whether relaxation can be done in assessing the
suitability of candidates when adequate PwD candidates are not available, after
selection in their respective category?
v. Whether a separate
cut-off is to be maintained and selection conducted accordingly for visually
impaired candidates?
V.
DISCUSSION & ANALYSIS
30.
Heard the learned counsel appearing for all the parties and perused the
records.
31.
The present set of cases raise important issues that touch upon the umbrella of
rights in respect of the differently abled persons or PwD who have been
afforded special protection under the law. More particularly, the main question
that needs to be addressed relates to the suitability of visually impaired
persons qualified with a degree in law to be appointed as judicial officers,
apart from allied issues and ancillary principles as to the application of the
equality doctrine read with the principle of reasonable accommodation as has
been recognised and specifically provided for in the RPwD Act, 2016. This
Court consciously uses the word “suitability” as against “eligibility” as it is
a matter of fact that once a person completes a degree in law and acquires the
other required educational qualifications as stipulated for appointment as a
judicial officer, he/she is eligible for appointment to the said post. However,
what has been raised here relates to the validity of the rules that touch upon
the suitability of the candidates to the said post. This in our opinion,
requires a detailed discussion and finding in order that such doubts relating
to suitability may not be raised in the future and the statutory rules in this
regard be framed and modulated accordingly.
32.
The crux of the issue in the cases therefore is, on the one hand, the validity
of the Rules that bar visually impaired persons from participating in the selection
of judicial service both directly and indirectly, and on the other hand, the
non-selection of the candidates (where they were permitted to participate) to
the vacant posts under the Unreserved Category of the Physically
Handicapped Quota for the post of Civil Judge, Junior Division (Entry Level).
A.
EXISTING CONSTITUTIONAL FRAMEWORK & NEED FOR ELEVATING RIGHT AGAINST
DISABILITY BASED DISCRIMINATION TO A FUNDAMENTAL RIGHT
33.
If there is one principle that forms part of the bedrock of the Constitution of
India, it is ‘inclusivity’ on which also rests the doctrine of equality, which,
apart from being one of the ideals set out in the preamble to our Constitution,
has been specifically stated in Articles 14,
15 and 16 under the Fundamental Rights Chapter, and forms part
of the basic structure of our Constitution. Furthermore, the other provisions
of the Constitution, more importantly the golden triangle of Articles 14,
19 and 21 would take within their sweep every right that forms part
of the Right to life which certainly and most importantly includes the right to
live with dignity.
34.
While Article 15 of the Constitution specifically bars the State from
discriminating against any citizen of India on grounds only of religion, race,
caste, sex, place of birth, or any of them, the specific ground of ‘disability’
is conspicuous by its absence. Though the anti-discrimination and
non-discrimination clauses under Article 15 were discussed at length
in the Constituent Assembly, ‘disability’ as a ground for non-discrimination
was not included in Article 15. A constitutional amendment
of Article 15 to address this glaring omission has been a
long-standing demand of the disability rights movement. This demand was also
affirmed by the United Nations Committee on the Rights of Persons with
Disabilities in its concluding observations in 2019 while reviewing India’s
compliance with the United Nations Convention on the Rights of Persons with
Disabilities[Committee report] .
Though Article 15 contains a strong anti-discrimination clause, the
fact that it specifies other grounds while not mentioning ‘disability’ as a
ground has remained a stumbling block for bringing in legislation, and the
first legislation in this regard was the Persons with disabilities (Equal
opportunities, Protection of Rights and Full Participation) Act, 1995. The
preamble to the Act would make it clear that this Act was passed pursuant to
the Proclamation on the Full Participation and Equality of the People with
Disabilities in the Asian and Pacific Region, adopted at the Meeting to Launch
the Asian and Pacific Decade of Disabled Persons 1993 - 2002 convened by the
Economic and Social Commission for Asia and Pacific held at Beijing on 1st to
5th December, 1992.
35.
Thereafter, the United Nations Convention on the Rights of Persons with
Disabilities was adopted in 2006 to which India is a signatory. Pursuant
thereto, the RPwD Act, 2016 came to be passed. While it is true that
the RPwD Act, 2016 came to be passed as part of fulfilment of
India’s obligations under the treaty implementation regime and was enacted by
the Parliament under Article 253 of the Constitution, the fact that
‘disability’ as a ground is not specifically stated under Article
15 of the Constitution, would not mean that the same is not part of the
constitutional obligations of the State. The provisions under section
32 and section 34 of the RPwD Act, 2016 would also be a clear
indication that similar to the State’s obligations to provide for special
protection including in the form of reservation for socially and educationally
backward classes in educational institutions as well as in employment as stated
in Articles 15 and 16 of the Constitution, the State has
taken up the obligation of providing similar protection including reservation
in respect of PwD. In view of the same, it can now be said that it is high time
that an anti-discrimination clause be included in the Constitution with a
specific provision that the State shall not discriminate on the grounds of
mental or physical disability in line with the principles as stated in
the RPwD Act, 2016. At this juncture, it is relevant to point out that as
many as 70 countries out of 189 contain ‘disability’ as one of the grounds
mentioned specifically in the constitutional provisions containing the
anti-discrimination clause.
36.
In this context, it is also relevant to mention that the RPwD Act,
2016 today has acquired the status of a ‘super statute’. The term ‘super
statute’ was first applied in 2001 by William N. Eskridge and John A. Ferejohn
to characterise an ordinary statute that not only reveals intention but
also establishes a new normative or institutional framework in the public
culture and has a broad effect on the law. As a result, such statutes have a
quasi-constitutional significance that exceed its former status as a statute.
In the words of the authors, “these super-statutes penetrate the public
normative and institutional and institutional culture”. [William N. Eskridge Jr and John A. Ferejohn, super-statutes, 50 duke
law journal 1215-1276 (2001)] Applying this test, it can safely be
said that the RPwD Act, 2016 has acquired the status equal to that of
a ‘super-statute’ and hence, contains the ingredients of a quasi-constitutional
law.
B.
INTERNATIONAL DISABILITY JURISPRUDENCE, DOCUMENTS AND COMMITMENT
37.
In international human rights law, equality is founded upon two complementary
principles: non-discrimination and reasonable differentiation. The principle of
non-discrimination seeks to ensure that all persons can equally enjoy and
exercise all their rights and freedoms. Discrimination occurs due to arbitrary
denial of opportunities for equal participation. For example, when public
facilities and services are set on standards out of the reach of PwD, it leads
to exclusion and denial of rights. Equality not only implies preventing
discrimination (example, the protection of individuals against unfavourable
treatment by introducing anti- discrimination laws), but goes beyond in
remedying discrimination against groups suffering systematic
discrimination in society. In concrete terms, it means embracing the notion of
positive rights, affirmative action and reasonable accommodation. The move from
the patronising and paternalistic approach to PwD represented by the medical
model to viewing them as members of the community with equal rights has also
been reflected in the evolution of international standards relating
specifically to disabilities, as well as in moves to place the rights of PwD
within the category of universal human rights.
38.
It would be apposite to extract some of the provisions contained in United
Nations Convention on Rights of Persons with Disabilities, 2007, where all
member states and signatories, including India, are bound by, and they are as
under:
PREAMBLE
b. Recognizing that the United Nations, in the
Universal Declaration of Human Rights and in the International Covenants on
Human Rights, has proclaimed and agreed that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any kind c.
Reaffirming the universality, indivisibility, interdependence and
interrelatedness of all human rights and fundamental freedoms and the need for
persons with disabilities to be guaranteed their full enjoyment without
discrimination….”
ARTICLE 1
- PURPOSE
“The purpose of the
present Convention is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with
disabilities, and to promote respect for their inherent dignity. Persons
with disabilities include those who have long-term physical, mental,
intellectual or sensory impairments which in interaction with various barriers
may hinder their full and effective participation in society on an equal basis
with others.”
ARTICLE 5
- EQUALITY AND NON-DISCRIMINATION
States Parties
recognize that all persons are equal before and under the law and are entitled
without any discrimination to the equal protection and equal benefit of the
law.
States Parties shall
prohibit all discrimination on the basis of disability and guarantee to persons
with disabilities equal and effective legal protection against discrimination
on all grounds.
In order to promote
equality and eliminate discrimination, States Parties shall take all appropriate
steps to ensure that reasonable accommodation is provided.
ARTICLE
9- ACCESSIBILITY
To enable persons with
disabilities to live independently and participate fully in all aspects of
life, States Parties shall take appropriate measures to ensure to persons with
disabilities access, on an equal basis with others, to the physical
environment, to transportation, to information and communications, including
information and communications technologies and systems, and to other
facilities and services open or provided to the public, both in urban and in
rural areas.
ARTICLE 13
- ACCESS TO JUSTICE
States Parties shall
ensure effective access to justice for persons with disabilities on an equal
basis with others, including through the provision of procedural and age-
appropriate accommodations, in order to facilitate their effective role as
direct and indirect participants, including as witnesses, in all legal
proceedings, including at investigative and other preliminary stages.
ARTICLE 14
- LIBERTY AND SECURITY OF THE PERSON
States Parties shall
ensure that persons with disabilities, on an equal basis with others:
a. Enjoy the right to
liberty and security of person;
b. Are not deprived of
their liberty unlawfully or arbitrarily, and that any deprivation of liberty is
in conformity with the law, and that the existence of a disability shall in no case
justify a deprivation of liberty.
ARTICLE 21 –
FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION
States Parties shall
take all appropriate measures to ensure that persons with disabilities can
exercise the right to freedom of expression and opinion, including the freedom
to seek, receive and impart information and ideas on an equal basis with others
and through all forms of communication of their choice.
ARTICLE 24 –
EDUCATION
States Parties
recognize the right of persons with disabilities to education. With a view to
realizing this right without discrimination and on the basis of equal
opportunity, States Parties shall ensure an inclusive education system at all
levels and lifelong learning.
ARTICLE 27 - WORK
AND EMPLOYMENT
To achieve de facto
equality in terms of the Convention, States parties must ensure that there is
no discrimination on the grounds of disability in connection to work and
employment. In order to ensure reasonable accommodation as laid out
in Article 5(3) and to achieve or accelerate de facto equality in the
work environment as laid out in Article 5(4), States parties should:
(a)Facilitate the
transition away from segregated work environments for persons with disabilities
and support their engagement in the open labour market, and in the meantime
also ensure the immediate applicability of labour rights to those settings;
(b)Promote the right
to supported employment, including to work assistance, job coaching and
vocational qualification programmes; protect the rights of workers with
disabilities; and ensure the right to freely chosen employment;
(c)Ensure that persons
with disabilities are paid no less than the minimum wage and do not lose the
benefit of disability allowances when they start work;
(d)Expressly recognize
the denial of reasonable accommodation as discrimination and prohibit multiple
and intersectional discrimination, and harassment;
(e)Ensure proper
transition into and out of employment for persons with disabilities in a
non-discriminatory manner. States parties are obliged to ensure equal and
effective access to benefits and entitlements, such as retirement or unemployment
benefits. Such entitlements must not be infringed upon by exclusion from
employment, thereby further exacerbating the situation of exclusion;
(f)Promote work in
inclusive and accessible, safe and healthy working environments in the public
and private sectors;
(g)Ensure that persons
with disabilities enjoy equal opportunities regarding career advancement
opportunities through regular assessment meetings with their managers and by
defining the objectives to be achieved, as a part of a comprehensive strategy;
(h)Ensure access to
training, retraining and education, including vocational training and
capacity-building for employees with disabilities, and provide training on the
employment of persons with disabilities and reasonable accommodation for
employers, representative organizations of employees and employers, unions and
competent authorities;
(i)Work towards
universally applicable occupational health and safety measures for persons with
disabilities, including occupational safety and health regulations that are
non-discriminatory and inclusive of persons with disabilities;
(j)Recognize the right
of persons with disabilities to have access to trade and labor union.
ARTICLE 30
- PARTICIPATION IN CULTURAL LIFE, RECREATION, LEISURE AND SPORT
States Parties recognize the right of persons
with disabilities to take part on an equal basis with others in cultural life,
and shall take all appropriate measures to ensure that persons with
disabilities enjoy access to cultural materials in accessible formats.
ARTICLE 32
- INTERNATIONAL COOPERATION
1. States Parties
recognize the importance of international cooperation and its promotion, in
support of national efforts for the realization of the purpose and objectives
of the present Convention, and will undertake appropriate and effective
measures in this regard, between and among States and, as appropriate, in
partnership with relevant international and regional organizations and civil
society, in particular organizations of persons with disabilities. Such
measures could include, inter alia:
a. Ensuring that
international cooperation, including international development programmes, is
inclusive of and accessible to persons with disabilities;
b. Facilitating and
supporting capacity-building, including through the exchange and sharing of
information, experiences, training programmes and best practices;
c. Facilitating
cooperation in research and access to scientific and technical knowledge;
d. Providing, as
appropriate, technical and economic assistance, including by facilitating
access to and sharing of accessible and assistive technologies, and through the
transfer of technologies.
Thus, this convention
is intended to promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities. It also
aims to promote respect for their inherent dignity and it combines civil and
political rights provided by anti-discrimination legislation along with an
array of social, cultural, and economic measures to fulfil the guarantee of
equality.
C.
RPwD Act, 2016 - PROVISIONS AND GUARANTEES
39. The
RPwD Act 2016 seeks to operationalize and give concrete shape to the
promise of full and equal citizenship held out by the Constitution to the
disabled and to execute its ethos of inclusion and acceptance. The important
provisions of the RPwD Act, 2016 are as follows:
SECTION 2
(C)
"barrier" means any factor including communicational, cultural,
economic, environmental, institutional, political, social, attitudinal or structural
factors which hampers the full and effective participation of persons with
disabilities in society;
(h) “discrimination”
in relation to disability, means any distinction, exclusion, restriction on the
basis of disability which is the purpose or effect of impairing or nullifying
the recognition, enjoyment or exercise on an equal basis with others of all
human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field and includes all forms of discrimination and
denial of reasonable accommodation;
(l) "high
support" means an intensive support, physical, psychological and
otherwise, which may be required by a person with benchmark disability for
daily activities, to take independent and informed decision to access
facilities and participating in all areas of life including education,
employment, family and community life and treatment and therapy;
(r) "person with
benchmark disability" means a person with not less than forty per cent. of
a specified disability where specified disability has not been defined in
measurable terms and includes a person with disability where specified
disability has been defined in measurable terms, as certified by the certifying
authority;
(s) "person with
disability" means a person with long term physical, mental, intellectual
or sensory impairment which, in interaction with barriers, hinders his full and
effective participation in society equally with others;
(y) "reasonable
accommodation" means necessary and appropriate modification and
adjustments, without imposing a disproportionate or undue burden in a
particular case, to ensure to persons with disabilities the enjoyment or
exercise of rights equally with others.
SECTION 3
“Equality and
non-discrimination- (1) The appropriate Government shall ensure that the
persons with disabilities enjoy the right to equality, life with dignity and
respect for his or her integrity equally with others. (2) The appropriate
Government shall take steps to utilise the capacity of persons with
disabilities by providing appropriate environment”.
SECTION 5
Community life-(1) The
persons with disabilities shall have the right to live in the community.
SECTION
6
Protection from
cruelty and inhuman treatment- (1) The appropriate Government shall take
measures to protect persons with disabilities from being subjected to torture,
cruel, inhuman or degrading treatment.
SECTION 12
Access to justice-(1)
The appropriate Government shall ensure that persons with disabilities are able
to exercise the right to access any court, tribunal, authority, commission or
any other body having judicial or quasi-judicial or investigative powers
without discrimination on the basis of disability.
SECTION 16
Duty of educational institutions- The
appropriate Government and the local authorities shall endeavour that all
educational institutions funded or recognised by them provide inclusive
education to the children with disabilities and towards that end shall— (i)
admit them without discrimination and provide education and opportunities for
sports and recreation activities equally with others; SECTION 20
Non-discrimination in employment- (1) No Government establishment shall
discriminate against any person with disability in any matter relating to
employment:
(2) Every Government
establishment shall provide reasonable accommodation and appropriate barrier
free and conducive environment to employees with disability. (3) No promotion
shall be denied to a person merely on the ground of disability.
SECTION 17
Specific measures to
promote and facilitate inclusive education. The appropriate Government and the
local authorities shall take the following measures for the purpose
of section 16, namely:
(a) to conduct survey
of school going children in every five years for identifying children with
disabilities, ascertaining their special needs and the extent to which these
are being met:
Provided that the
first survey shall be conducted within a period of two years from the date of
commencement of this Act;
(b) to establish
adequate number of teacher training institutions;
(c) to train and
employ teachers, including teachers with disability who are qualified in sign
language and Braille and also teachers who are trained in teaching children
with intellectual disability;
(d) to train
professionals and staff to support inclusive education at all levels of school
education;
(e) to establish
adequate number of resource centres to support educational institutions at all
levels of school education;
(f) to promote the use
of appropriate augmentative and alternative modes including means and formats
of communication, Braille and sign language to supplement the use of one's own
speech to fulfil the daily communication needs of persons with speech,
communication or language disabilities and enables them to participate and
contribute to their community and society;
(g) to provide books,
other learning materials and appropriate assistive devices to students with
benchmark disabilities free of cost up to the age of eighteen years;
(h) to provide
scholarships in appropriate cases to students with benchmark disability;
(i) to make suitable
modifications in the curriculum and examination system to meet the needs of
students with disabilities such as extra time for completion of examination
paper, facility of scribe or amanuensis, exemption from second and third
language courses;
(j) to promote
research to improve learning; and
(k) any other
measures, as may be required.
SECTION 20
Non-discrimination in
employment- (1) No Government establishment shall discriminate against any
person with disability in any matter relating to employment:
(2) Every Government
establishment shall provide reasonable accommodation and appropriate barrier
free and conducive environment to employees with disability. (3) No promotion
shall be denied to a person merely on the ground of disability SECTION 21 Equal
opportunity policy. (1) Every establishment shall notify equal opportunity
policy detailing measures proposed to be taken by it in pursuance of the
provisions of this Chapter in the manner as may be prescribed by the Central
Government. (2) Every establishment shall register a copy of the said policy
with the Chief Commissioner or the State Commissioner, as the case may be.
SECTION 24
Social security- (1)
The appropriate Government shall within the limit of its economic capacity and
development formulate necessary schemes and programmes to safeguard and promote
the right of persons with disabilities for adequate standard of living to
enable them to live independently or in the community. SECTION 32
Reservation in higher educational institutions:
(1) All Government institutions
of higher education and other higher education institutions receiving aid from
the Government shall reserve not less than five per cent. seats for persons
with benchmark disabilities.
(2) The persons with
benchmark disabilities shall be given an upper age relaxation of five years for
admission in institutions of higher education.
SECTION 33
Identification of
posts for reservation: The appropriate Government shall—
(i) identify posts in
the establishments which can be held by respective category of persons with
benchmark disabilities in respect of the vacancies reserved in accordance with
the provisions of section 34;
(ii) constitute an
expert committee with representation of persons with benchmark disabilities for
identification of such posts; and
(iii) undertake
periodic review of the identified posts at an interval not exceeding three
years.
SECTION 34
Reservation- (1) Every
appropriate Government shall appoint in every Government establishment, not
less than four per cent. of the total number of vacancies in the cadre strength
in each group of posts meant to be filled with persons with benchmark
disabilities of which, one per cent. each shall be reserved for persons with
benchmark disabilities under clauses (a), (b) and (c) and one per cent. for
persons with benchmark disabilities under clauses (d) and (e), namely:—
(a) blindness and low
vision;
(b) deaf and hard of
hearing;
(c) locomotor
disability including cerebral palsy, leprosy cured, dwarfism, acid attack
victims and muscular dystrophy;
(d) autism,
intellectual disability, specific learning disability and mental illness;
(e) multiple
disabilities from amongst persons under clauses (a) to (d) including
deaf-blindness in the posts identified for each disabilities. As it can be
seen, the RPwD Act, 2016 marks a significant legislative shift by
expanding the rights of PwDs and broadening the recognized categories of
disabilities. It ensures equality and non-discrimination, mandates reasonable
accommodation, and prohibits barriers to community life, education, employment,
and access to justice. It also provides for social security measures, inclusive
education, reservations in higher education and employment, and protection from
cruelty and exploitation. More importantly, it imposes clear responsibilities
on the State and other stakeholders in this regard.
D.
JUDICIAL APPROACH - PROGRESS MADE THUS FAR
40.
The following judgments of this Court would illustrate the progress made thus
far on the judicial front, including elucidation of the concept of reasonable
accommodation:
(i) In Union of
India & Ors v. National federation of Blind & Ors[2013 (10) SCC 772], this Court has recognized
that employment opportunities play an instrumental role in empowering PwD.
Justice P.Sathasivam (as he then was) observed thus:
“50. Employment is a
key factor in the empowerment and inclusion of people with disabilities. It is
an alarming reality that the disabled people are out of job not because their
disability comes in the way of their functioning rather it is social and
practical barriers that prevent them from joining the workforce. As a result,
many disabled people live in poverty and in deplorable conditions. They are
denied the right to make a useful contribution to their own lives and to the
lives of their families and community.”
(ii) In Jeeja
Ghosh (supra), it has been noted by this Court that a key component of
equality is the principle of reasonable differentiation and specific measures
must be undertaken, recognizing the different needs of PwD, to pave the way for
substantive equality. Justice A.K. Sikri stated in the said judgement as
follows:
“40. In international
human rights law, equality is founded upon two complementary principles:
non-discrimination and reasonable differentiation. The principle of non-
discrimination seeks to ensure that all persons can equally enjoy and exercise
all their rights and freedoms. Discrimination occurs due to arbitrary denial of
opportunities for equal participation. For example, when public facilities and
services are set on standards out of the reach of persons with disabilities, it
leads to exclusion and denial of rights. Equality not only implies preventing
discrimination (example, the protection of individuals against unfavourable
treatment by introducing anti-discrimination laws), but goes beyond in
remedying discrimination against groups suffering systematic discrimination in
society. In concrete terms, it means embracing the notion of positive rights,
affirmative action and reasonable accommodation.”
(iii) In Vikash Kumar (supra), it has been
held as follows:
“35. The principle of
reasonable accommodation captures the positive obligation of the State and
private parties to provide additional support to persons with disabilities to
facilitate their full and effective participation in society. The concept of
reasonable accommodation is developed in section (H) below. For the present,
suffice it to say that, for a person with disability, the constitutionally
guaranteed fundamental rights to equality, the six freedoms and the right to
life under Article 21 will ring hollow if they are not given this
additional support that helps make these rights real and meaningful for them.
Reasonable accommodation is the instrumentality – are an obligation as a
society – to enable the disabled to enjoy the constitutional guarantee of
equality and non-discrimination.”
“44. The principle of
reasonable accommodation. Individual dignity undergirds the RPwD Act,
2016. Intrinsic to its realization is recognizing the worth of every person as
an equal member of society. Respect for the dignity of others and
fostering conditions in which every individual can evolve according to
their capacities are key elements of a legal order which protects, respects and
facilitates individual autonomy. In seeking to project these values as inalienable
rights of the disabled, the RPwD Act, 2016 travels beyond being
merely a charter of non-discrimination. It travels beyond imposing restraints
on discrimination against the disabled. The law does this by imposing a
positive obligation on the State to secure the realization of rights. It does
so by mandating that the State must create conditions in which the barriers
posed by disability can be overcome. The creation of an appropriate environment
in which the disabled can pursue the full range of entitlements which are
encompassed within human liberty is enforceable at law. In its emphasis on
substantive equality, the enactment of the legislation is a watershed event in
providing a legal foundation for equality of opportunity to the disabled.
45. The principle of
reasonable accommodation acknowledges that if disability as a social construct
has to be remedied, conditions have to be affirmatively created for
facilitating the development of the disabled. Reasonable accommodation is
founded in the norm of inclusion. Exclusion results in the negation of
individual dignity and worth or they can choose the route of reasonable
accommodation, where each individuals’ dignity and worth is respected. Under
this route, the “powerful and the majority adapt their own rules and practices,
within the limits of reason and short of undue hardship, to permit realization
of these ends.”
46. Accommodation
implies a positive obligation to create conditions conducive to the growth and
fulfilment of the disabled in every aspect of their existence – whether as
students, members of the workplace, participants in governance or, on a
personal plane, in realizing the fulfilling privacies of family life. The
accommodation which the law mandates is ‘reasonable’ because it has to be
tailored to the requirements of each condition of disability. The expectations
which every disabled person has are unique to the nature of the disability and
the character of the impediments which are encountered as its consequence.
49. The principle
contains an aspiration to meet the needs of the class of persons facing a
particular disability. Going beyond the needs of the class, the specific
requirement of individuals who belong to the class must also be accommodated.
The principle of reasonable accommodation must also account for the fact that
disability based discrimination is intersectional in nature. The intersectional
features arise in particular contexts due to the presence of multiple
disabilities and multiple consequences arising from disability. Disability therefore
cannot be truly understood by regarding it as unidimensional. Reasonable
accommodation requires the policy makers to comprehend disability in all
its dimensions and to design measures which are proportionate to needs,
inclusive in their reach and respecting of differences and aspirations.
Reasonable accommodation cannot be construed in a way that denies to each
disabled person the customization she contains an aspiration to meet the needs
of the class of persons facing a particular disability. Going beyond the needs
of the class, the specific requirement of individuals who belong to the class
must also be accommodated. The principle of reasonable accommodation must also
account for the fact that disability based discrimination is intersectional in
nature. The intersectional features arise in particular contexts due to the
presence of multiple disabilities and multiple consequences arising from
disability. Disability therefore cannot be truly understood by regarding it as
unidimensional. Reasonable accommodation requires the policy makers to
comprehend disability in all its dimensions and to design measures which are
proportionate to needs, inclusive in their reach and respecting of differences
and aspirations.
(iv) In Justice
Sunanda Bhandare Foundation v. Union of India[(2014) 14 SCC 383], it has been held as under:
“9…In the matters of
providing relief to those who are differently abled, the approach and attitude
of the executive must be liberal and relief oriented and not obstructive or
lethargic…”
(v) In Francis
Coralie Mullin v. Administrator, Union Territory of Delhi & Ors [(1981) 1 SCC 608], this Court has held
as under:
“The fundamental right
to life which is the most precious human right and which forms the ark of all
other rights must, therefore, be interpreted in a broad and expansive spirit so
as to invest it with significance and vitality which may endure for years to
come and enhance the dignity of the individual and the worth of human
person.” Right to dignity has been particularly recognized in this
judgment as one of the facets of right to life: “every act which offends
against or impairs human indignity would constitute deprivation pro tanto of
this right to live.” This expansive understanding of right to life assumes
greater proportions in respect of persons with visual impairments, who need a
higher number of compensative skill enhancing facilities in order to go about
their daily lives without suffering the indignity of being generally perceived
as being dependent and helpless.
(vi) In Rajive Raturi
v. Union of India[AIRONLINE 2018 SC
544] , Justice A.K. Sikhri, held as follows:
“26. The States and
the Union Territories must realize that under the 2016 Act their
responsibilities have grown and they are required to actualize the purpose of
the Act, for there is an accent on many a sphere with regard to the rights of
the disabilities. When the law is so concerned for the disabled persons and
makes provision, it is the obligation of the law executing authorities to give
effect to the same in quite promptitude. The steps taken in this regard shall
be concretely stated in the compliance report within the time stipulated. When
we are directing the States, a duty is cast also on the States and its
authorities to see that the statutory provisions that are enshrined and
applicable to the cooperative societies, companies, firms, associations and
establishments, institutions, are scrupulously followed. The State Governments
shall take immediate steps to comply with the requirements of the 2016 Act and
file the compliance report so that this Court can appreciate the progress
made.”
(vii) In Ravinder
Kumar Dhariwal v. Union of India[(2023) 2
SCC 209], this Court has observed as under:
“77. Since disability
is a social construct dependent on the interplay between mental impairment with
barriers such as social, economic and historical among other factors, the
one-size-fits-all approach can never be used to identify the disability of a
person. Disability is not universal but is an individualistic conception based
on the impairment that a person has along with the barriers that they face.
Since the barriers that every person faces are personal to their surroundings —
interpersonal and structural, general observations on “how a person ought to
have behaved” cannot be made.
78. The legislative
framework and decisions of this Court on the impact of “barriers” or
circumstances on the mental health of an individual have been discussed above.
When the interaction
with the barriers causes a person to feel “disabled”, it is extremely important
to not stigmatise or discriminate against persons having mental health issues
or any other form of disability. Such discrimination would only further
entrench the feeling of being “disabled”.
…
82. CRPD is an international
human rights treaty of the United Nations which is intended to promote, protect
and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities. [ Article 1, CRPD 2006.] It
also aims to promote respect for their inherent dignity. [ Article 1, CRPD
2006.] It is a holistic treaty that combines civil and political rights
provided by anti- discrimination legislation along with an array of social,
cultural, and economic measures to fulfil the guarantee of equality. [ Jayna
Kothari, “The UN Convention on Rights of Persons with Disabilities: An Engine
for Law Reform in India”, 45(18) Economic and Political Weekly 65-72 (2010).]
India is a signatory to CRPD and has ratified it on 1-10-2007. Article
1 of the CRPD provides an inclusive definition of persons with
disabilities. It recognises that disability is an evolving concept and that
disability results from the interaction of persons with impairments with
attitudinal and environmental barriers that hinder their full participation in
society [Preamble, CRPD 2006]. Article 1 states thus:
“1. … Persons with
disabilities include those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their
full and effective participation in society on an equal basis with others.” In
light of Section 20(4) and the general guarantee of reasonable
accommodation that accrues to persons with disabilities, the appellant is
entitled to be reassigned to a suitable post having the same pay scale and
benefits. The CRPF may choose to assign him a post taking into consideration
his current mental health condition. The suitability of the post is to be
examined based on an individualised assessment of the reasonable accommodation
that the appellant needs. The authorities can ensure that the post to which the
appellant is accommodated does not entail handling or control over firearms or
equipment which can pose a danger to himself or to others in or around the
workplace.” Thus, these rulings underscore the principle that reasonable
accommodation is not a discretionary measure, but a fundamental right integral
to achieving substantive equality for PwD, forming part of the right to dignity
as guaranteed under Article 21 of the Constitution. It is also worthy
to mention that the 73rd and 74th Amendments of the Constitution of India made
it a Constitutional obligation for the State to make provisions for
safeguarding the interest of the weaker section of the society, including
‘handicapped and mentally retarded’. Further, it is a well-established
principle that the State has an obligation to apply the Directive Principles of
securing a social order in promotion of the welfare of the people. The
importance of Article 41 in the Constitutional scheme can be measured
by this Court’s judgment in Jacob M. Puthuparambil & others v. Kerala
Water Authority and others[AIR 1990
SC 2228], wherein, it was held that ‘a Court should interpret an Act so as
to advance Article 41’. Therefore, Article 41 of the Constitution
which is in the nature of a Directive Principle, imposes a duty on the State to
make an effective provision, inter alia, for public assistance to disabled
persons.
E. RIGHTS-BASED APPROACH
41.
The spirit of the RPwD Act, 2016 would reveal that the principle of
reasonable accommodation is a concept that not only relates to affording equal
opportunity to the PwD but also it goes further as to ensuring the dignity of
the individual by driving home the message that the assessment of a person’s
suitability, capacity and capability is not to be tested and measured by medical
or clinical assessment of the same but must be assessed after providing
reasonable accommodation and an enabling atmosphere. The judgement of this
Court in Vikash Kumar (supra) assumes increased significance in this
regard. This Court in this case has expounded in detail the principle of
reasonable accommodation by invoking the social model of disability. In
response to the judgement, the Department of Disability Affairs, Government of
India has notified guidelines for availing of scribes by all persons with
specified disabilities to appear in written examinations thereby widening the
ambit of its earlier guidelines issued in 2018 confining this privilege only to
persons with benchmark disabilities. Very importantly, while overruling
the earlier decision in Surendra Mohan (supra), this Court has held
that any decision which is innocent to the principle of reasonable
accommodation would amount to disability-based discrimination and is also in
deep tension with the ideal of inclusive equality. After the judgement which
has focused on a rights-based model and rejection of the medicalisation of the
disability in order to assess the suitability and capability of PwD, the
“suspicion ridden medical expertise driven model” [Sandra Fredman, “substantive Equality Revisited” Vol.14(3).,
International journal of constitutional law (2016) 712-738], is directly
opposed to the principle as laid down by this court and also the
spirit of the RPwD Act, 2016.
42.
In the present case also, the opinion of the medical expert is driven only by
clinical assessment and suspicion. On the basis of the same, the impugned rule,
viz., clause 6A of the Madhya Pradesh Judicial Service Examination (Recruitment
and Conditions of Service) Rules, 1994 specifically excluding visually impaired
candidates from participation for selection as judicial officers, came to be
substituted by way of amendment, which is against the guarantee of substantive
equality embodied in the super-statute, i.e., the RPwD Act, 2016, and the
principle of reasonable accommodation as set out therein, pursuant to India’s
international obligation. The rights-based model of disability has now become
part of the national and normative structure of anti-discrimination regime of
this country. The impugned rule, which is based on the medical report of a
doctor, in the light of the foregoing analysis, cannot have any place in the
disability jurisprudence that is ever evolving in a country like ours. Such
conclusions based merely on a clinical assessment of disability, innocent of
the principle of reasonable accommodation, cannot be said to be a fair and
proper assessment of the capability of judicial officers with disabilities
while participating in the selection to the post of judicial officers. It is
relevant to point out here that once a person has been permitted to the degree
of law course, all other opportunities, whether in the form of practice as well
as appointments, assignments whether public or private, would automatically
make them eligible to participate for selection to the same. The principle of
legitimate expectation also stands attracted to this case as part of the
aspect of non-arbitrariness while furthering the equality doctrine. Here it
also relevant to mention that UNCRPD Committee in its General Comment No.6
on Article 5, equality and non-discrimination, has developed the idea of
inclusive/transformative equality. The relevant portion of the committee’s
observation reads as follows:
……. “Inclusive
equality corresponds to a new model of disability, the human rights model of
disability, which leaves a charity, welfare, and medical approaches behind and
is based on the assumption that disability is not primarily a medical issue.
Rather disability is a social construct and impairment must not be taken as
legitimate ground for the denial or restriction of human rights”.
India
is a signatory to this convention and hence, under an obligation to fulfil this
object of inclusive equality. In view thereof, visually impaired candidates
cannot be said to be ‘not suitable’ for judicial service and Rule 6A of the
Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of
Service) Rules, 1994 falls foul of the Constitution.
F.
INDIRECT DISCRIMINATION
43.
In the context of the Rule viz., Proviso to Rule 7 of the Madhya Pradesh
Judicial Service Rules, though it was challenged by PwD as well as able-bodied
persons, it has been placed on record that the order under appeal relates to
scrutiny of the said Rule only vis-a-vis the general principles of law while
not examining the same in the context of the disability jurisprudence. In the
present case, the said rule is only being dealt with in the context of the
challenge made to it by PwD more particularly, visually impaired candidates,
who have qualified themselves as lawyers and are aspiring for the post of
judicial officers. Therefore, the principle of indirect discrimination assumes
significance. Briefly put, the principle of indirect discrimination has its
basis in the fundamental principle that unequals cannot be treated equally, and
sometimes equal treatment may lead to unequal results. The counsel for the
appellants pointed out the difficulties that are practically faced by PwD,
which would go to prove that the three-year practice as well as the alternative
rule of securing 70% in the first attempt of the examinations, though seems
fair at the first blush, and on the face of it, is truly discriminatory in
operation. At this juncture, it is pertinent to point out that the relaxation
was granted to SC/ST candidates in relation to the aggregate marks required for
obtaining a law degree. In Col. Nitisha v. Union of India[2021 SCC online SC 261], Justice D.Y. Chandrachud (as he then
was), while noting that the jurisprudence relating to indirect discrimination
in India is still at a nascent stage, observed that indirect discrimination is
caused by facially neutral criteria by not taking into consideration, the
underlying effects of a provision, practice or criterion. While the
observations made in the said case relate to gender- based discrimination, they
are still relevant on principle here and hence, quoted as follows:
“We must recognise
here that the structures of our society have been created by males and for
males. As a result certain structures that may seem to be the “norm” and appear
to be harmless, are a reflection of the insidious patriarchal system. These
adjustments and amendments however, are not concessions being granted to a set
of persons but instead are the wrongs being remedied to obliterate years of
suppression of opportunities which should have been granted to women….Facially
equal application of laws to unequal parties is a farce, when the law is
structured to cater to a male standpoint”.
The observations made
by this Court as stated above, can equally be applied to PwD candidates.
44.
The judgment in Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. [(06.09.2018 - SC): MANU/SC/0947/2018 :
(2018) 10 SCC 1] also explains the concept of indirect discrimination
with judgments across the world, while dealing with the validity of a legal
provision which though appears facially neutral, has the effect of
discriminating against a particular group of citizens or particular identities.
The relevant portion of the judgment is extracted hereunder for reference:
“E 1- Facial
Neutrality: Through the Looking Glass
441. The moral belief
which underlies Section 377 is that sexual activities which do not result in
procreation are against the 'order of nature' and ought to be criminalized
Under Section 377. The intervenors submit that Section 377, criminalizes anal
and oral sex by heterosexual couples as well. Hence, it is urged that Section
377 applies equally to all conduct against the 'order of nature', irrespective
of sexual orientation.
This submission is
incorrect. In NALSA this Court held that Section 377, though associated with
specific sexual acts, highlights certain identities. In Naz, the Delhi High
Court demonstrated effectively how Section 377 though facially neutral in its
application to certain acts, targets specific communities in terms of its
impact: Section 377 Indian Penal Code is facially neutral and it
apparently targets not identities but acts, but in its operation, it does end
up unfairly targeting a particular community. The fact is that these sexual
acts which are criminalised are associated more closely with one class of
persons, namely, the homosexuals as a class. Section 377 Indian Penal
Code has the effect of viewing all gay men as criminals. When everything
associated with homosexuality is treated as bent, queer, repugnant, the whole
gay and lesbian community is marked with deviance and perversity. They are
subject to extensive prejudice because what they are or what they are perceived
to be, not because of what they do. The result is that a significant group of
the population is, because of its sexual nonconformity, persecuted,
marginalised and turned in on itself.
To this end, it
chronicled the experiences of the victims of Section 377, relying on the
extensive records and affidavits submitted by the Petitioners that brought to
fore instances of custodial rape and torture, social boycott, degrading and
inhuman treatment and incarceration. The court concluded that while Section 377
criminalized conduct, it created a systemic pattern of disadvantage, exclusion
and indignity for the LGBT community, and for individuals who indulge in
non-heterosexual conduct.
442. Jurisprudence
across national frontiers supports the principle that facially neutral action
by the State may have a disproportionate impact upon a particular class. In
Europe, Directive 2006/54/EC of the European Parliament and of the Council of 5
July 2006 defines 'indirect discrimination' as: "where an apparently
neutral provision, criterion or practice would put persons of one sex at a
particular disadvantage compared with persons of the other sex, unless that
provision, criterion or practice is objectively justified by a legitimate aim,
and the means of achieving that aim are appropriate and necessary."
443. In Griggs v. Duke
Power Co. MANU/USSC/0066/1971: 401 U.S. 424 (1971), the US Supreme Court,
whilst recognizing that African-Americans received sub-standard education due
to segregated schools, opined that the requirement of an aptitude/intelligence
test disproportionately affected African-American candidates. The Court held
that "The Civil Rights Act" proscribes not only overt discrimination
but also practices that are fair in form, but discriminatory in
operation."
444. In Bilka-Kaufhaus
GmbH v. Karin Weber von Hartz (1986) ECR 1607, the European Court of Justice
held that denying pensions to part-time employees is more likely to affect
women, as women were more likely to take up part-time jobs. The Court noted:
Article 119 of
the EEC Treaty is infringed by a department store company which excludes
part-time employees from its occupational pension scheme, where that exclusion
affects a far greater number of women than men, unless the undertaking shows
that the exclusion is based on objectively justified factors unrelated to any
discrimination on grounds of sex.
445. The Canadian
Supreme Court endorsed the notion of a disparate impact where an action has a
disproportionate impact on a class of persons. In Andrews v. Law Society of
British Columbia MANU/SCCN/0036/1989: (1989) 1 SCR 143, the Court noted:
Discrimination is a
distinction which, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, has an effect which
imposes disadvantages not imposed upon others or which withholds or limits
access to advantages available to other members of society. Distinctions based
on personal characteristics attributed to an individual solely on the basis of association
with a group will rarely escape the charge of discrimination, while those based
on an individual's merits and capacities will rarely be so classed. Thus, when
an action has "the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon others, or which
withholds or limits access to opportunities, benefits, and advantages available
to other members of society", it would be suspect.
446. In City Council
of Pretoria v. Walker MANU/SACC/0001/1998: (1998) 3 BCLR 257, the
Constitutional Court of South Africa observed:
The concept of
indirect discrimination ... was developed precisely to deal with situations
where discrimination lay disguised behind apparently neutral criteria or where
persons already adversely hit by patterns of historic subordination had their
disadvantage entrenched or intensified by the impact of measures not overtly
intended to prejudice them.
In many cases,
particularly those in which indirect discrimination is alleged, the protective
purpose would be defeated if the persons complaining of discrimination had to
prove not only that they were unfairly discriminated against but also that the
unfair discrimination was intentional. This problem would be particularly acute
in cases of indirect discrimination where there is almost always some purpose
other than a discriminatory purpose involved in the conduct or action to which
objection is taken.”
45.
Some other decisions relating to Indirect Discrimination in the context of
proviso to Rule 7 of the Madhya Pradesh Judicial Service Rules, may also be
noted to understand the concept deeper and they are as follows:
(i) Walter E.
Washington, etc., et. al. v. Alfred E. Davis et al. [426 U.S. 229], wherein, the case involves the validity of a qualifying
test administered to applicants, who are two negro police officers, alleging
that the promotion policies of the Department were racially discriminatory,
which is violative of the rights under the due process clause of the Fifth
Amendment to the United States Constitution. The test was sustained by the
District Court, but invalidated by the Court of Appeals. The Supreme Court of
United States was in agreement with the District Court and accordingly,
reversed the judgment of the Court of appeals. While doing so, it was observed
that “a rule that a statute designed to serve neutral ends is nevertheless
invalid, absent compelling justification, if in practice it benefits or burdens
one race more than another would be far reaching and would raise serious questions
about, and perhaps invalidate, a whole range of tax, welfare, public service,
regulatory and licensing statutes that may be more burdensome to the poor and
to the average black than to the more affluent white”.
(ii) Council Directive
2000/78/EC (February 27, 2000) defines the concept of “indirect
discrimination”. In S. Coleman v. Attridge Law and Steve Law[European Court Reports 2008 1-05603] ,
it was held by the Grand Chamber, UK that “the prohibition of harassment laid
down by the provisions of the Directive 2000/78 is not limited only to people
who are themselves disabled; where it is established that the unwanted conduct
amounting to harassment, which is suffered by an employee, who is not himself
disabled is related to the disability of his child, whose care is provided
primarily by that employee, such conduct is contrary to the provisions to the
prohibition of harassment”.
(iii) The South
African Constitutional Court in City Council of Pretoria v. Walker[SACC – 1998 (2) SA 363] , while
interpreting and enforcing the Constitution, has held that “the concept of
indirect discrimination... was developed precisely to deal with situations
where discrimination lay disguised behind apparently neutral criteria or where
persons already adversely hit by patterns of historic subordination had their
disadvantage entrenched or intensified by the impact of measures not overtly
intended to prejudice them”. ... “In many cases, particularly those in which
indirect discrimination is alleged, the protective purpose would be defeated if
the persons complaining of discrimination had to prove not only that they were
unfairly discriminated against but
also that the unfair discrimination was intentional. This problem would be
particularly acute in cases of indirect discrimination where there is almost
always some purpose other than a discriminatory purpose involved in the conduct
or action to which objection is taken”. The same was referred to by this
Court in Nitisha (supra) and the Delhi High Court in Madhu v. Northern
Railway[Order dated 17.01.2018 in
LPA.640/2017] .
(iv) In a recent
decision in Mahlangu v. Minister of Labour[[2020]
ZACC 24], the South African Constitutional Court (SACC) had to rule on the
constitutionality of Section 1(xix)(v) of the Compensation for
Occupational Injuries and Diseases Act, 130 of 1993. This provision explicitly
excluded domestic workers from the definition of employees under the Act. This
had the consequence of depriving domestic workers access to the social security
benefits contained in the legislation, in the event of injury, disablement and
death. The SACC, inter alia, rendered a finding that the provision was hit by
the constitutional prohibition on indirect discrimination.
(v)In Ontario Human
Rights Commission v. Simpsons - Sears [“Ontario
HRC”, MANU/SCCN/0009/1985] , the Canadian Supreme Court expounded the
doctrine of indirect discrimination, while entertaining a challenge
under Section 4(1)(g) of the Ontario Human Rights Code[Section 4(1)(g) of the Ontario Human
Rights Code prohibited discrimination against an employee with regard to any
term or condition of employment on the basis of race, creed, colour, sex, age,
etc.] . In analyzing whether a work policy mandating inflexible
working hours on Friday evenings and Saturdays indirectly discriminated against
the appellant on the basis of her creed, in that her religion required her to
strictly observe the Sabbath, the Court noted as follows:
“18. A distinction
must be made between what I would describe as direct discrimination and the
concept already referred to as adverse effect discrimination in connection with
employment. Direct discrimination occurs in this connection where an employer
adopts a practice or rule which on its face discriminates on a prohibited ground.
For example, “No Catholics or no women or no blacks employed here.” There is,
of course, no disagreement in the case at bar that direct discrimination of
that nature would contravene the Act. On the other hand, there is the concept
of adverse effect discrimination. It arises where an employer for genuine
business reasons adopts a rule or standard which is on its face neutral, and
which will apply equally to all employees, but which has a discriminatory
effect upon a prohibited ground on one employee or group of employees in that
it imposes, because of some special characteristic of the employee or group,
obligations, penalties, or restrictive conditions not imposed on other members
of the work force. For essentially the same reasons that led to the conclusion
that an intent to discriminate was not required as an element of discrimination
contravening the Code I am of the opinion that this Court may consider adverse
effect discrimination as described in these reasons a contradiction of the
terms of the Code. An employment rule honestly made for sound economic or
business reasons, equally applicable to all to whom it is intended to apply,
may yet be discriminatory if it affects a person or group of persons
differently from others to whom it may apply. From the foregoing I therefore
conclude that the appellant showed a prima facie case of discrimination based
on creed before the Board of Inquiry.”
(vi) In Orsus v.
Croatia[[2010] ECHR 337], the
allegation raised by the applicants was that they had been attending separate
classes comprising only roma pupils at times during their primary education and
thereby discriminated in the enjoyment of that right on account of their
race or ethnic origin. The European Court of Human Rights was of the view that
“indirect discrimination shall be taken to occur, where an apparently neutral
provision, criterion or practice would put persons of an ethnic origin at a
particular disadvantage compared with other persons, unless it is objectively
justified by a legitimate aim and the means of achieving that aim are
appropriate, necessary and proportionate”.
(vii) The Supreme
Court of Canada, in Action Travail des Femmes v. Canadian National Railway
Company[(1987) 1 SCR 1114]
analyzed the claim of woman seeking equal employment opportunities in the
National Railroad Company. In echoing the mutually reinforcing consequences of
direct and indirect discrimination within organizational structures as a
systemic feature, the Court observed as under:
“Systemic
discrimination in an employment context is discrimination that results from the
simple operation of established procedures of recruitment, hiring and
promotion, none of which is necessarily designed to promote discrimination. The
discrimination is then reinforced by the very exclusion of the disadvantaged
group because the exclusion fosters the belief, both within and outside the
group, that the exclusion is a result of “natural forces”, for example, that
women “just can’t do the job”(see the Abella Report, pp.9-10). To combat systemic
discrimination, it is essential to create a climate in which both negative
practices and negative attitudes can be challenged and discouraged”....
In prescribing
remedies against systemic discrimination, the Court consciously noted as
follows:
“the remedies do not
have to be merely compensatory, but also prospective in terms of the benefit
that is designed to improve the situation in the future”. The Court structured
the remedy as follows: “An employment equity program thus is designed to work
in three ways. First, by countering the cumulative effects of systemic
discrimination, such a program renders further discrimination pointless....”.
(viii) The framework
provided in Action Travail des -Femmes was followed by the Human Rights
Tribunal of Canada, in National Capital Alliance on Race Relations v. Canada
(Health and Welfare) [1997 28 C.H.R.R.D /
179 (Canadian Human Rights Tribunal)] wherein the Court had to examine a
case against the Health and Welfare Department of Canada for discriminating
against visible minorities by establishing employment policies and practices
that deprive visible minorities (race, colour and ethnic origin) of employment
opportunities in senior management. The Court conducted a holistic analysis of
the organization by collating testimonies of workers in the organization and by
engaging experts on statistical analysis and human resource management. The
evidence of the expert on human resources was analysed to situate systemic
issues ranging from ghettoization of minorities in Canada translating into
lesser encouragement for professional ambition. Societal impact of
discrimination was evidenced in the informal staffing decisions providing
fertile ground for unconscious bias and a broader perception of visible
minorities as unfit for management. In upholding the claims of the plaintiffs,
corrective measures were prescribed to counteract the effects of systemic
discrimination in the workforce. The said decision was pointed out by this
Court in Nitisha (supra).
(ix) In Abdulaziz,
Cabales and Balkandali v. United Kingdom[[1985]
ECHR 7], the European Court of Human Rights held that "As to the
present matter, it can be said that the advancement of the equality of the
sexes is today a major goal in the member States of the Council of Europe. This
means that very weighty reasons would have to be advanced before a difference
of treatment on the ground of sex could be regarded as compatible with the
Convention". Following the said decision, the European Court of Human
Rights once again observed in Van Raalte v. The Netherlands[[1997] ECHR 6] , that in the applicant's submission,
differences in treatment based on sex were already unacceptable when section 25
of the General Child Care Benefits Act was enacted in 1962. The wording
of Article 14 of the Convention showed that such had been the
prevailing view as early as 1950. Moreover, legal and social developments
showed a clear trend towards equality between men and women. Further reference
was made to Abdulaziz, which stated explicitly that "the advancement of
the equality of the sexes is today a major goal in the member States of the
Council of Europe" and that "very weighty reasons would have to
be advanced before a difference of treatment on the ground of sex could be
regarded as compatible with the Convention". These observations were
referred to by this Court in Anuj Garg (supra).
(x)
In relation to the principle of indirect discrimination, the judgement of the
Madras High Court in M. Sameeha Barvin v. Government of India[(2021) 1 Madras Law Journal 466],
assumes significance, in which, one of us (Justice R. Mahadevan) observed that
“while the jurisprudence on Indirect discrimination is still growing, it is
pertinent to identify these instances of systemic and indirect discrimination,
couched in neutrality and seemingly innocent reasons perpetuated by social
conditioning but which cannot stand scrutiny before law in the teeth of the
expansive substantive equality as envisioned and envisaged in our Constitution,
and to discard them just as stark instances of discrimination. Such instances
of indirect discrimination perpetuate inequality and cripple the salient
personal freedom and autonomy available to every citizen of this country,
irrespective of their personal attributes and differences”.
46.
Thus, the principle of indirect discrimination hereinbefore applied to counter
gender-based discrimination, can also be applied to the facts of the present
case, where disabled/visually impaired legal practitioners are sought to be
equated with their able-bodied counterparts in the matter of application of
certain conditions for participation for selection to the post of judicial
officers. Applying such a test of indirect discrimination, the ease of practice
as well as the securing of marks cannot be said to be an equal condition to
both classes of citizens, viz., disabled and able- bodied lawyers, given that
the atmosphere in which they operate cannot be said to be the same. This is
also a perfect example of how unequals are sought to be treated equally, and
that itself would be a negation of the principle of substantive equality.
Therefore, it can easily be inferred that the rule relating to practice or in
the alternative, to secure 70% in the first attempt in the examinations, is a
case of indirect discrimination as the provisions are facially neutral but
discriminatory in operation. In view of the same, Rule 7 of the Madhya Pradesh
Judicial Service Rules, 1994, to the extent it prescribes the additional
requirement of either a three-year practice period or securing an aggregate
score of 70% in the first attempt, is liable to be struck down insofar as it
applies to PwD candidates. Accordingly, the impugned Rule will be applicable to
PwD candidates insofar as it prescribes the educational and other qualifications
as eligibility criteria including the minimum aggregate score of 70% (with
relaxation as may be determined like in the case of SC/ST candidates) but
without the requirement of either that it should be in the first attempt or
that they should have three years’ practice. This issue stands answered in the
said terms.
G.
RELAXATION IN CRITERIA FOR SELECTION & SEPARATE CUT-
OFF
MARKS FOR DISABLED CANDIDATES - WHETHER PERMISSIBLE
47.
The learned counsel for the appellant [SLP(C)No.7683 of 2024], in his arguments
prayed for relaxation of marks on the basis of vacancy and Office Memorandum
No. 36035/02/2017-Estt (Res) [Reservation for Persons with Benchmark
Disabilities] dated 15.01.2018.
48.
The primary contention is that though the appellant has secured more marks in
aggregate than the selected disabled candidates, he could not secure the
minimum cut-off of 20 marks in the interview, due to which he fell out of the
zone of consideration, and that inspite of there being vacancies available, the
authority has not relaxed the interview minimum cut-off marks, despite there
being a power to relax the same pursuant to the Office Memorandum referred to
in the previous paragraph. The further case of the appellant is that even
generally, prescription of any minimum cutoff for interview alone is not
permissible in law.
49.
We may refer to the following judgment, which would make it clear that mere
existence of vacancies cannot be a ground to claim relaxation in marks. At the
same time, this Court in several cases has held that laying down a minimum
cutoff for interview is legally permissible. Therefore, the only question that
remains to be decided is, when there are suitable executive instructions/orders
giving the authority the power to relax, whether such a power should be
exercised in order to relax the minimum required marks in favour of the
visually impaired candidates for selection.
49.1. Neetu
Devi Singh v. High Court of Allahabad[2008
(2) AWC 1541] , wherein, it was held as under:
‘In view thereof, as
the reservation is provided for physically handicapped persons, though
horizontal in nature, he/she must secure minimum qualifying marks as fixed by
the authority concerned. The appellant-petitioner who has failed to achieve the
said benchmark as she secured 36 percent marks while qualifying marks had been
fixed as 55 percent, would be denied further consideration in view of the
provisions of Article 335 of the Constitution of India. It is not the
case of the appellant-petitioner that any other physically handicapped person
securing lesser marks than her, is being permitted consideration any further.’
50.
Examining whether relaxation of cut off marks can be granted to the appellant,
reliance may be placed to Taniya Malik v. High Court of Delhi[(2018) 14 SCC 129], wherein it was held
as under:
‘Merely by the fact
that some more posts were advertised and they are lying vacant, it could not
have been a ground to relax the minimum marks for interview after the interview
has already been held. It would not have been appropriate to do so and the High
Court has objected to relaxation of minimum passing marks in viva voce
examination in its reply and as the power to relax is to be exercised by the
High Court and since it has opposed such a prayer on reasonable ground and the
institutional objective behind such prescription, we are not inclined to direct
the High Court to relax the minimum marks.’
51. In
a similar case of Rajinder Pal Singh v. State of Punjab & Ors[2012 SCC Online P&H 2017] ,
the writ petitioner (PwD) secured 48.8%, whereas the minimum aggregate passing
mark for clearing mains examination was 50%, prayed for relaxation of 5%
marks for PwD on the ground that there are 4 vacancies. The Punjab &
Haryana High Court dismissed the prayer of the petitioner holding as under:
“Merely because the
posts advertised under Category 9 have gone abegging would by itself not clothe
the writ court to issue a direction contrary to the Rules of service to fill up
such posts by relaxing standards. But looking to the fact that persons with
disabilities have not made it on general standards, the appropriate Government
i.e. the Government of Punjab may consider the issue raised in this petition in
the light of the 1995 Act and take a final decision with respect to grant or non-grant
of relaxed standards to persons with disabilities consistent with its duty both
of affirmative action and empowerment and to maintain the efficiency required
for holding judicial office and to do so within a reasonable period and
preferably before the next recruitment is made to the P.C.S. (Judicial
Branch).”
52.
However, it is now well-established that PwD are supposed to be identified as a
separate class in itself and therefore, some kind of benefits has to be
extended to them with respect to eligibility which was extended similarly to
other vertical reserved class. The Delhi High Court in Anamol Bhandari v.
Delhi Technological University[2012 SCC
Online Del 4788] , provided for relaxation or concession marks to PwD
at the same par as that of SC/ST candidates. The relevant paragraph is
extracted as under:
“21. Reference to the
aforesaid judgment is made by us to highlight the decision taken by the
Government, and accepted by the Supreme Court that reservation for disabled is
called horizontal reservation which cuts across all vertical categories such as
SC, ST, OBC & General. Therefore, what was recognized was that since PwDs
belonging to SC/ST categories, i.e., vertical categories enjoyed the relaxation
which is provided to SC/ST categories, there is no reason not to give the same
benefit/concession to those disabled who are in General Category or Other
Backward Class Category as that process only would bring parity among all
persons' disparity irrespective of their vertical categories. This itself
provides for justification to accord same concession, viz., 10% concession to
PwDs as well, in all categories which is extended to those PwDs who fall in the
category of SC/ST.
22. All the aforesaid
clinchingly demonstrates that the people suffering from disabilities are
equally socially backward, if not more, as those belonging to SC/ST categories
and therefore, as per the Constitutional mandates, they are entitled to at
least the same benefit of relaxation as given to SC/ST candidates.
52.1.
This Court in Aryan Raj v. State (UT) of Chandigarh[2021 (19) SCC 813] affirmed the above principle and held as
follows:
“3. We are of the view
that the High Court is correct on the bifurcation aspect. Further, insofar as
the aptitude test having to be passed is concerned, the High Court is correct
in saying that no exemption ought to be granted, but we follow the
principle laid down in the Delhi High Court's judgment in Anamol
Bhandari v. Delhi Technological University [Anamol Bhandari v. Delhi
Technological University, 2012 SCC OnLine Del 4788 : (2012) 131 DRJ 583] in
which the High Court has correctly held that people suffering from disabilities
are also socially backward, and are therefore, at the very least, entitled to
the same benefits as given to the Scheduled Caste/Scheduled Tribe candidates.
..
5. In our view,
considering that Scheduled Caste/Scheduled Tribe candidates require 35% to pass
in the aptitude test, the same shall apply so far as the disabled are concerned
in future. Shri Gonsalves's client is, therefore, at liberty to apply afresh
for the current year, in which the requisite certificate that is spoken about
in the advertisement dated 31-5-2019, is furnished stating that he is fit to
pursue the course in Painting or Applied Art. Further, it is clear that
aptitude test pass mark, so far as disabled are concerned, is now 35%.”
53.
This Court in S.M.W.(C). No 2/2024 passed the following order on 21.05.2024:
“1. After our order
dated 21.03.2024, we are informed that thirty one specially abled candidates
appeared in the main examination. We are also informed that they are not called
for interview either on the ground that they are ineligible or that they have
not secured minimum marks.
2. In furtherance of
our order dated 21.03.2024, and to take it to its logical conclusion, we direct
that if anyone of these thirty one candidates have secured the requisite
minimum mark(s) as is provided for reserved (SC/ST) candidates, they shall be
called for interview.”
53.1.
This Court in this case, thus exercising its powers, found fit to undo the
discrimination of not treating PwD as a separate class which requires to be
treated so as to ensure equality of results, by not specifying any relaxations
or concessions which was provided to other reserved candidates.
54.
This Court in Haridas Parsedia v. Urmila Shakya[(2000) 1 SCC 81] , dealt with whether when relaxation of
marks is not permitted to SC/ST candidates who compete in the same exam, the
posts reserved for these categories will go unfilled and after such unfilled
carry forward posts continue to remain unfilled for the given permissible
period of recruitment, these reserved posts would get unreserved and would be
available to general category candidates and that this would frustrate the
policy decision taken by the State under Article 16 (4) for enabling
the SC/ST candidates to be appointed in the posts reserved for them. This Court
held that under Article 309, Rules relaxation power is available to the
government, the exercise of that power can be either by a General
Administrative order or by special administrative order and hence,
relaxation/concession of marks were permissible.
55.
This Court in S.M.W.(C) No.2/2024 also issued directions to the High Court on
07.11.2024, that while making recruitment to judicial service, they ought to
provide separate qualifying marks for PwBD in the Preliminary and Main
Examinations. This Court also observed that the qualifying marks should
ordinarily be the same as for SC/ST candidates or can even be lower if so
prescribed by the relevant Rules. If the Rules are silent, then the competent
authority can lay down such qualifying marks.
56.
It is also pertinent to point out at this juncture that pursuant to the order
of this Court dated 07.11.2024, the Delhi High Court has been providing
reservation for persons with benchmark disabilities on reserved post in
judicial service. Further, the copy of the minutes of the meeting of
Examination Committee held on 11.12.2024, proceeds to state that the order
passed by this Court issuing directions governing the selection of candidates
to the District Judiciary across the country has been perused and accordingly,
separate qualifying marks for persons with benchmark disabilities at different
stages of the examinations have been provided under the Delhi Higher Judicial
Service Rules, 1970 and Delhi Judicial Service Rules, 1970, besides providing
separate cut-off for persons with benchmark disabilities at various stages of
the selection process. It also states that this High Court is providing the
benefit of reservation to persons with benchmark disabilities in terms of the
Gazette Notification dated 04.01.2021 issued by the Ministry of Social Justice
and Empowerment, Department of Empowerment of Persons with Disabilities
(Divyangjan), whereby various disabilities including blindness and low vision,
have been identified to be suitable for the post of Judicial Officers.
57.
In the present case, the High Court though gave relaxation of marks to
candidates belonging to SC / ST in written examinations (both prelims and
mains), but it explicitly deemed not to give any relaxation to candidates from
the other categories in the interview. The above direction passed by this court
in a connected matter also deemed not to specify any minimum qualifying mark
separately in interview for any categories.
58. In Indra
Sawhney v. Union of India[1992 Supp (3)
SCC 217], seven judge Constitution Bench proposed for reservation of PwD
candidates in public employment and for relaxation of lesser qualifying marks
as amounting to affirmative action in their favour. The following paragraphs
are relevant:
“293. Preference
without reservation may be adopted in favour of the chosen classes of citizens
by prescribing for them a longer period for passing a test or by awarding
additional marks or granting other advantages like relaxation of age or
other minimum requirements. (See the preferential treatment in State
of Kerala v. N.M. Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 :
(1976) 1 SCR 906] ). Furthermore, it would be within the discretion of the
State to provide financial assistance to such persons by way of grant,
scholarships, fee concessions etc. Such preferences or advantages are like temporary
crutches for additional support to enable the members of the backward and other
disadvantaged classes to march forward and compete with the rest of the people.
These preferences are extended to them because of their inability otherwise to
compete effectively in open selections on the basis of merits for appointment
to posts in public services and the like or for selection to academic courses.
Such preferences can be extended to all disadvantaged classes of citizens,
whether or not they are victims of prior discrimination. What qualifies persons
for preference is backwardness or disadvantage of any kind which the State has
responsibility to ameliorate. The blind and the deaf, the dumb and the maimed,
and other handicapped persons qualify for preference. So do all other classes
of citizens who are at a comparative disadvantage for whatever reason, and
whether or not they are victims of prior discrimination. All these persons may
be beneficiaries of preferences short of reservation. Any such preference,
although discriminatory on its face, may be justified as a benign
classification for affirmative action warranted by a compelling State interest.
294. In addition to
such preferences, quotas may be provided exclusively reserving posts in public
services or seats in academic institutions for backward people entitled to such
protection. Reservation is intended to redress backwardness of a higher degree.
Reservation prima facie is the very antithesis of a free and open selection. It
is a discriminatory exclusion of the disfavoured classes of meritorious
candidates : M.R. Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] . It is not a
case of merely providing an advantage or a concession or preference in favour
of the backward classes and other disadvantaged groups. It is not even a
handicap to disadvantage the forward classes so as to attain a measure of
qualitative or relative equality between the two groups. Reservation which
excludes from consideration all those persons falling outside the specially
favoured groups, irrespective of merits and qualifications, is much more
positive and drastic a discrimination — albeit to achieve the same end of
qualitative equality — but unless strictly and narrowly tailored to a
compelling constitutional mandate, it is unlikely to qualify as a benign
discrimination. Unlike in the case of other affirmative action programmes,
backwardness by itself is not sufficient to warrant reservation. What qualifies
for reservation is backwardness which is the result of identified past
discrimination and which is comparable to that of the Scheduled Castes and the
Scheduled Tribes. Reservation is a remedial action specially addressed to the
ill effects stemming from historical discrimination. To ignore this vital
distinction between affirmative action short of reservation
and reservation by a predetermined quota as a remedy for past inequities
is to ignore the special characteristic of the constitutional grant of power
specially addressed to the constitutionally recognised backwardness.
PRESCRIBING LESSER
QUALIFYING MARKS
831. We must also make
it clear that it would not be impermissible for the State to extend concessions
and relaxations to members of reserved categories in the matter of promotion
without compromising the efficiency of the administration. The relaxation
concerned in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1
SCR 906] and the concessions namely carrying forward of vacancies and
provisions for inservice coaching/training in Karamchari Sangh [(1981) 1 SCC
246, 289 : 1981 SCC (L&S) 50 : (1981) 2 SCR 185, 234] are instances of such
concessions and relaxations. However, it would not be permissible to prescribe
lower qualifying marks or a lesser level of evaluation for the members of
reserved categories since that would compromise the efficiency of
administration. We reiterate that while it may be permissible to prescribe a
reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs —
consistent with the efficiency of administration and the nature of duties
attaching to the office concerned — in the matter of direct recruitment, such a
course would not be permissible in the matter of promotions for the reasons
recorded hereinabove.
832. In Balaji [1963
Supp 1 SCR 439 : AIR 1963 SC 649] and other cases, it was assumed that
reservations are necessarily anti-meritarian. For example, in Janki Prasad
Parimoo [(1973) 1 SCC 420 : 1973 SCC (L&S) 217 : (1973) 3 SCR 236, 252] it
was observed, “it is implicit in the idea of reservation that a less meritorious
person be preferred to another who is more meritorious”. To the same effect is
the opinion of Khanna, J in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S)
227 : (1976) 1 SCR 906] , though it is a minority opinion. Even Subba Rao, J
who did not agree with this view did recognize some force in it. In his
dissenting opinion in Devadasan [T. Devadasan v. Union of India, (1964) 4
SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] while holding that there is no
conflict between Article 16(4) and Article 335, he did say, “it
is inevitable in the nature of reservation that there will be a lowering of
standards to some extent”, but, he said, on that account the provision cannot
be said to be bad, inasmuch as in that case, the State had, as a matter of
fact, prescribed minimum qualifications, and only those possessing such minimum
qualifications were appointed. This view was, however, not accepted by Krishna
Iyer, J in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1
SCR 906] . He said : (SCC p. 366, para 132) “[E]fficiency means, in terms
of good government, not marks in examinations only, but responsible and
responsive service to the people. A chaotic genius is a grave danger in public
administration. The inputs of efficiency include a sense of belonging and of
accountability which springs in the bosom of the bureaucracy (not pejoratively
used) if its composition takes in also the weaker segments of ‘We, the people
of India’. No other understanding can reconcile the claim of the radical
present and the hangover of the unjust past.”
833. A similar view
was expressed in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1 SCR 352] by
Chinnappa Reddy, J. The learned Judge said (SCC p. 739, para
36) “[T]he mere
securing of high marks at an examination may not necessarily mark out a good
administrator. An efficient administrator, one takes it, must be one who
possesses among other qualities the capacity to understand with sympathy and,
therefore, to tackle bravely the problems of a large segment of population
constituting the weaker sections of the people. And, who better than the ones
belonging to those very sections? Why not ask ourselves why 35 years after
Independence, the position of the Scheduled Castes, etc. has not greatly
improved? Is it not a legitimate question to ask whether things might have been
different, had the District Administrators and the State and Central
Bureaucrats been drawn in larger numbers from these classes? Courts are not
equipped to answer these questions, but the courts may not interfere with the
honest endeavours of the Government to find answers and solutions. We do not
mean to say that efficiency in the civil service is unnecessary or that it is a
myth. All that we mean to say is that one need not make a fastidious fetish of
it.”
834. It is submitted
by the learned counsel for petitioners that reservation necessarily means
appointment of less meritorious persons, which in turn leads to lowering of
efficiency of administration. The submission, therefore, is that reservation
should be confined to a small minority of appointments/posts, — in any event,
to not more than 30%, the figure referred to in the speech of Dr Ambedkar in
the Constituent Assembly. The mandate of Article 335, it is argued,
implies that reservations should be so operated as not to affect the efficiency
of administration. Even Article 16 and the directive of Article
46, it is said, should be read subject to the aforesaid mandate of Article
335.
835. The respondents,
on the other hand, contend that the marks obtained at the examination/test/interview
at the stage of entry into service is not an indicium of the inherent merit of
a candidate. They rely upon the opinion of Douglas, J in DeFunis [40 L Ed
2d 164 : 416 US 312 (1974)] where the learned Judge illustrates the said aspect
by giving the example of a candidate coming from disadvantaged sections of
society and yet obtaining reasonably good scores — thus manifesting his
“promise and potential” — vis-a-vis a candidate from a higher strata obtaining
higher scores. (His opinion is referred to in para 716.) On account of the
disadvantages suffered by them and the lack of opportunities, — the respondents
say — members of backward classes of citizens may not score equally with the
members of socially advanced classes at the inception but in course of time,
they would. It would be fallacious to presume that nature has endowed
intelligence only to the members of the forward classes. It is to be found
everywhere. It only requires an opportunity to prove itself. The directive in Article
46 must be understood and implemented keeping in view these aspects, say
the respondents.
836. We do not think
it necessary to express ourselves at any length on the correctness or otherwise
of the opposing points of view referred to above. (It is, however,
necessary to point out that the mandate — if it can be called that —
of Article 335 is to take the claims of members of SC/ST into
consideration, consistent with the maintenance of efficiency of administration.
It would be a misreading of the article to say that the mandate is maintenance
of efficiency of administration.) Maybe, efficiency, competence and merit are
not synonymous concepts; maybe, it is wrong to treat merit as synonymous with
efficiency in administration and that merit is but a component of the
efficiency of an administrator. Even so, the relevance and significance of
merit at the stage of initial recruitment cannot be ignored. It cannot also be
ignored that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this much cost has to
be paid, if the constitutional promise of social justice is to be redeemed. We
also firmly believe that given an opportunity, members of these classes are
bound to overcome their initial disadvantages and would compete with — and may,
in some cases, excel — members of open competition. It is undeniable that
nature has endowed merit upon members of backward classes as much as it has
endowed upon members of other classes and that what is required is an
opportunity to prove it. It may not, therefore, be said that reservations are
anti-meritarian. Merit there is even among the reserved candidates and the
small difference, that may be allowed at the stage of initial recruitment is
bound to disappear in course of time. These members too will compete with and
improve their efficiency along with others.
837. Having said this,
we must append a note of clarification. In some cases arising
under Article 15, this Court has upheld the removal of minimum qualifying
marks, in the case of Scheduled Caste/Scheduled Tribe candidates, in the matter
of admission to medical courses. For example, in State of M.P. v. Nivedita
Jain [(1981) 4 SCC 296: (1982) 1 SCR 759] admission to medical course
was regulated by an entrance test (called Pre-Medical Test). For general
candidates, the minimum qualifying marks were 50% in the aggregate and 33% in
each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was
40% and 30% respectively. On finding that Scheduled Caste/Scheduled Tribe
candidates equal to the number of the seats reserved for them did not qualify
on the above standard, the Government did away with the said minimum standard
altogether. The Government's action was challenged in this Court but was
upheld. Since it was a case under Article 15, Article 335 had no
relevance and was not applied. But in the case of Article 16, Article
335 would be relevant and any order on the lines of the order of the Government
of Madhya Pradesh (in Nivedita Jain [(1981) 4 SCC 296: (1982) 1 SCR 759]) would
not be permissible, being inconsistent with the efficiency of administration.
To wit, in the matter of appointment of Medical Officers, the Government or the
Public Service Commission cannot say that there shall be no minimum qualifying
marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a
minimum for others. It may be permissible for the Government to prescribe a
reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward
Classes — consistent with the requirements of efficiency of administration — it
would not be permissible not to prescribe any such minimum standard at all.
While prescribing the lower minimum standard for reserved category, the nature
of duties attached to the post and the interest of the general public should
also be kept in mind.”
59.
The above judgment therefore illustrates that relaxation in marks can be given
to PwD candidates and this relaxation in minimum marks does not dilute the
efficiency in administration as contended by the learned counsel for the
respondent. This, coupled with Madhya Pradesh Judicial Service Rules
(Recruitment and Conditions of Service) Rules, 1994) [As amended up to F. No.
3106/XXI- B(One)/2023, dated 22-6-2023] which empowers the High Court with the
power to relax, may be used to arrive at a conclusion that relaxation of marks
in interview is possible for PwD candidates. The said Rule is extracted
hereunder:
19. Power to
relax.—Where the Hon'ble Chief Justice is satisfied that the operation of any
of these rules causes undue hardship in any particular case or class of cases,
he may for reasons to be recorded in writing dispense with or relax the
particular rule to such an extent and subject to such exceptions and conditions
as may be deemed necessary:
Provided that as and
when any such a relaxation is granted by the Hon'ble Chief Justice, the
Governor shall be informed of the same.
60.
Furthermore, the Office Memorandum No. 36035/02/2017-Estt (Res) [Reservation
for Persons with Benchmark Disabilities] dated 15.01.2018, issued by Ministry
of Personal, Public Grievances & Pensions, Department of Personnel &
Training also provides for relaxation in standards of suitability, the relevant
clause of which reads as under:
“11. RELAXATION OF
STANDARD OF SUITABILITY:
11.1 If sufficient
number of candidates with benchmark disabilities candidates are not available
on the basis of the general standard to fill all the vacancies reserved for
them, candidates belonging to this category may be selected on relaxed standard
to fill up the remaining vacancies reserved for them provided they are not
found unfit for such post or posts. However, this provision shall not be used
to allow any relaxation in the eligibility criteria laid down for the issuance
of certificate of disability.
Same relaxed standard
should be applied for all the candidates with Benchmark Disabilities whether
they belong to Unreserved/SC/ST/OBC. No further relaxation of standards will be
considered or admissible in favour of any candidate from any category
whatsoever.”
61. In
this connection, it is apt to refer to a three-judge bench decision of this
Court in Om Rathod v. Director General of Health Services[2024 SCC Online SC 3130] wherein
it was observed as follows:
“57. The provision of
an audit trail to assess whether a given accommodation required by a student
with disability places an undue burden on the institution is a vital safeguard
for transparency and fairness. Dr Satendra Singh in his report dated 20 October
2024 has made suggestions to (i) rename the Disability Assessment Boards as
Ability Assessment Boards to align them better with their intended purpose;
(ii) include a doctor with disability or who is well conversant with disability
rights in such Boards; (iii) use a human rights model of disability for
assessment; (iv) issue guidance on clinical accommodations; (v) train the
Boards in carrying out the disability competency assessment; and (vi) use the
Enabling Units to serve as a contact point for clinical accommodations. As far
as the inclusion of doctors with disabilities in the Disability Assessment
Boards is concerned the first respondent has issued a circular on 24 March 2022
mandating such inclusion. This direction shall be complied with by all Boards.
58. The second
respondent has submitted that in light of the judgment of this Court in Omkar
Gond (supra), it will be constituting a new committee of domain experts to
comply with the directions in that judgment. We note the assurance of the
second respondent and direct that this committee shall include persons with
disability or one or more experts who are well conversant with disability
rights. The committee shall recommend fresh guidelines to replace the existing
guidelines. The above suggestions shall be duly considered by the government on
its own merits. The recommendations so formulated shall comply with this
judgment.” These observations may be borne in mind by the appointing
authorities so that specially-abled persons form part of the interview panel,
enabling them to put themselves in the shoes of the candidates and assess their
capabilities accordingly.
62.
Thus, it is discernible from the above that in light of the decision
in Indra Sawhney v. Union of India[1992
Supp (3) SCC 217] , relaxation of minimum marks is permissible in law.
Further, the aforesaid Office Memorandum clearly permits the authority to relax
the minimum marks. Therefore, we are of the opinion that relaxation in minimum
cut- off marks is permissible, especially when there is a specific power of
relaxation available to the appointing authority. Accordingly, these issues are
answered by us. Ancillary issues
63.
With respect to the main contention of the learned counsel appearing for the
writ petitioners in WP Nos. 484 and 494 of 2024, as well as the subject matter
in Suo Motu Writ Petition No. 6/2024, regarding the non-publication of separate
cutoff marks for persons with disabilities’ candidates in the Rajasthan
Judicial Service Examinations, despite clear cut-offs being specified and
published for other horizontal reservation categories, such as women, divorced
candidates, and widows, let us first examine the relevant provisions of the
Rajasthan Judicial Service Rules, 2010, which read as follows:
“10. Reservation of
vacancies for Scheduled Castes, Scheduled Tribes, Other Backward Classes, More
Backward Classes, Economically Weaker Sections, Persons with Disabilities and
Women candidates.
(4) Reservation of
vacancies for Persons with benchmark disabilities in the recruitment to the
service shall be in accordance with the rules of the State issued from time to
time in this behalf.”
“20. Scheme of
Examination and Syllabus - (1) The competitive examination for the recruitment
to the post of Civil Judge shall be conducted by the Recruiting Authority in
two stages i.e. preliminary examination and Main examination as per the Scheme
specified in Schedule-IV. The marks obtained in the preliminary Examination by
the candidate who are declared qualified for admission to the main examination
will not be counted for determining their final merit.
(2) The number of
candidate to be admitted to the main examination will be fifteen times the
total number of vacancies (Category wise) to be filled in the year but in the
said range all those candidates who secure the same percentage of marks as may
be fixed by the Recruiting Authority for any lower range will be admitted to the
Main Examination.
(3) On the basis of
marks secured in Main Examination, candidates to the extent of three times of
total number of vacancies (Category wise) shall be declared qualified to be
called for interview.
(3-A) The committee
consisting of two sitting judges of the High Court and an expert not below the
rank of Professor (Law), nominated by the Chief Justice, shall interview the
candidates.
(4) The Recruiting
Authority shall not recommend a candidate who has failed to appear, in any of
the written paper or before the Board for Viva Voce. (5) Syllabus shall be such
as may be prescribed by the Recruiting Authority from time to time.”
“24. List of
candidates recommended by the Recruiting Authority.- The Recruiting Authority
shall prepare a list of the candidates in the order of their performance on the
basis of their aggregate marks. If two or more of such candidates obtain equal
marks in the aggregate, the Recruiting Authority shall arrange them in the
order of merit on the basis of their general suitability for service and
recommend their names to the Appointing Authority for appointment to the Cadre
of Civil Judge:
Provided that the
Recruiting Authority shall not recommend a candidate of Scheduled Castes or
Scheduled Tribes category unless he obtains minimum 35% marks in the aggregate
of written examination and the interview, and, in the case of other candidates,
unless he obtains minimum 40% marks in the aggregate of written examination and
the interview.”
“41. List of selected
candidates.- The Court shall prepare the merit list category wise on the basis
of aggregate marks obtained in Main examination and interview considering the
suitability in general.
Provided that
notwithstanding anything contained in any rule or schedule, and having regard
to the requirement of efficiency in service, the court may determine such cut
off marks as considered fit for being recommended for appointment.”
The
above provisions lead us to conclude that under Rule 10, the rule making body
delineated PwBD as a separate category by providing them reservation
separately; and Rule 41 mandates that the High Court shall prepare a merit list
of candidates’ category wise by determining cut off marks as may be deemed fit.
63.1.
According to the High Court of Rajasthan, the notification dated 16.03.2024
amends Rajasthan Judicial Service Rules, 2010, by providing relaxation in age
and concession of 5% in marks in favour of PwBD candidates; and they are
abiding by any orders/directions issued by this Court.
63.2.
In the light of the discussion in the preceding paragraphs, we hold that
relaxation of cutoff marks is permissible in respect of persons with
disabilities’ candidates appearing for the judicial service examinations.
63.3.
Taking note of all these aspects, we are of the opinion that maintaining and
operating a separate cut-off list is mandatory for each category, which
axiomatically includes PwD category as well. Non-declaration of cut-off marks
affects transparency and creates ambiguity, and candidates being not informed
about the basis of their results. Such candidates are left uninformed
about the last mark scored by the qualifying candidate belonging to the particular
category, to be able to get through to the next stage of selection process. In
effect, it compels PwD candidates to compete with other category candidates on
unequal terms. Further, when the Rules referred to above, considered the
PwD as a separate category and provided them with reservations, it is
indispensable on the part of the authorities concerned to declare separate
cut-off marks for PwD category at each stage to ensure that those similarly
placed candidates are adequately represented in the service fulfilling the very
purpose of reservation. The non-disclosure of cut-off marks would lead to a
situation, where such candidates may not be adequately represented in the
judicial service, which is against the provisions of the RPwD Act, 2016.
Therefore, we direct the authorities concerned to declare separate cut-off
marks and publish separate merit list for the PwD category at every stage of
the examination and proceed with the selection process accordingly.
64.
At this juncture, this Court reiterates that for the purpose of rights and
entitlements of persons with disabilities, particularly in employment, and more
specifically in respect of the issues covered in this judgment, there can be no
distinction between Persons with Disabilities (PwD) and Persons with Benchmark
Disabilities (PwBD). It is made abundantly clear that any such technical
distinction sought to be made by the authorities cannot be sustained in law. It
will be appropriate to state that this principle has been maintained by this
Court and the same is evident from the observation made in Vikash Kumar as
follows:
“31.
Conflating the rights and entitlements which inhere in Persons with
disabilities with the notion of benchmark disabilities does dis-service to the
salutary purpose underlying the enactment of the RPwD Act 2016. Worse
still, to deny the rights and entitlements recognized for persons with
disabilities on the ground that they do not fulfil a benchmark disability would
be plainly ultra vires the RPwD Act 2016.”
H. SHINING EXAMPLES TO SHOW - ‘IT CAN BE DONE’
65.
The findings and conclusions reached by this Court are strongly reinforced by
the exemplary achievements of distinguished individuals in the legal profession
who have demonstrated that visual impairment is no barrier to attaining
professional excellence, competing on equal footing, and making significant
contributions to the justice delivery system alongside their able-bodied
counterparts. In this regard, the learned counsel for the intervenor drew our
attention to several visually impaired legal experts from various branches of
the profession, featured in the IDAP interview series, ‘It Can Be Done,’
conducted by Rahul Bajaj, Anusha Reddy, and Madhavi Singh. The series aims to
provide actionable insights from lawyers and judges with disabilities on the
strategies they have used to succeed, while also promoting awareness and
fostering meaningful dialogue on the necessity of reasonable accommodations for
PwD. A few of the interviews are outlined below:
(i) Justice Zak Mohammed
Yacoob, who lost his sight at 16 months due to meningitis, served as a judge on
the South African Constitutional Court from 1998 to 2013. Despite his
blindness, he effectively discharged his judicial duties with the assistance of
a legally trained personal assistant, a talking computer, a braille printer,
and a note-taker who converted text into braille. While acknowledging that
reading case materials took longer, he firmly rejected the misconception that
blind individuals are incapable of assessing critical evidence, such as charts,
maps, or witness demeanour. He argued that the belief that one must “see” a
witness to assess credibility was unfounded. Throughout his tenure, Justice
Yacoob strongly advocated for the constitutional protection of the rights of
differently-abled individuals, emphasizing the need for accessibility and
equality within the justice system.
(ii) Justice David S.
Tatel, a judge on the United States Court of Appeals for the District of
Columbia Circuit, adapted to his blindness by employing law clerks and a reader
to assist with visual materials. Though less adept with modern technology, he
relied on a braille keyboard. He firmly asserted that blindness does not limit
a lawyer’s ability to argue cases effectively. Rejecting the imposition of low
expectations on blind professionals, he preferred to be recognized as a “judge
who happens to be blind” rather than a “blind judge” reinforcing the principle
that competence in the legal profession is not diminished by disability.
(iii) David Lepofsky,
a distinguished Canadian lawyer, has argued over 30 cases before the Supreme
Court of Canada and more than 200 before the Ontario Court of Appeal.
Acknowledged as one of Canada’s most influential lawyers, he has leveraged
technological advancements to enhance his legal practice. Previously reliant on
volunteers to read trial transcripts, he now accesses case materials digitally
through screen readers and cloud-based platforms, allowing him to work from
anywhere. Despite the inherent challenges, Lepofsky remains steadfast in his
commitment to ensuring litigants receive their rightful entitlements,
demonstrating perseverance and self-reliance in overcoming professional
barriers.
(iv) Senior Advocate
S.K. Rungta of India, conferred with the prestigious title of Senior Advocate
by the Delhi High Court in 2011, has dedicated his career to breaking down
barriers for the differently-abled. Initially reliant on clerks for mobility
and legal filings, he has substantially reduced this dependence with the advent
of assistive technology. While he encountered skepticism from some judges
regarding his capabilities, he asserts that the judiciary has largely been
supportive.
His contributions have
been instrumental from facilitating entry of the blind to into the civil
services to enforcing disability reservations under Indian law, securing the
right of blind individuals to serve as witnesses, and shaping India’s
disability legislation- The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995.
(v) Tomer Rosner, a
blind legal advisor to the Israeli Parliament, plays a crucial role in drafting
and analyzing legislation, particularly concerning disability rights. Given the
extensive volume of legal documents he must review, he employs screen readers
and optical character recognition (OCR) technology to access text that is
otherwise inaccessible. Despite these technological aids, there remain
instances where he relies on personal readers. He acknowledges the challenges
inherent in his profession but maintains that with the effective use of
technology and adaptive strategies, legal professionals with disabilities can
manage their responsibilities with competence and efficiency.
(vi) Mr. Jack Chen, a
blind patent attorney at Google, highlighted that the primary challenge for
visually impaired lawyers is not completing legal tasks but doing so with
efficiency. Tasks such as legal drafting and formatting, particularly those
requiring adherence to citation standards like the Bluebook, demand
significantly more time. He noted that while blind professionals may take
longer in certain tasks, they often outperform their sighted peers in others,
particularly in reading speed when using screen readers. His success
exemplifies the capacity of blind legal professionals to adapt and excel
in highly technical fields through the strategic use of assistive technology.
(vii) Yetnebersh
Nigussie, an Ethiopian lawyer and disability rights activist, attributes her
ability to pursue a legal career to the loss of her eyesight at the age of
five, an event she considers to have spared her from early child marriage. She
has dedicated herself to using education as a tool to empower persons with
disabilities, particularly women and girls, who often face compounded
discrimination. She emphasizes that genuine inclusion requires changing
societal mindsets and providing tangible facilities to ensure access to education
and healthcare. Arguing that no form of discrimination should be tolerated, she
stresses the importance of adopting a holistic approach to human rights,
reinforcing the principle that all individuals, irrespective of gender or
disability, deserve equal opportunities.
(viii) Judge Ronald M.
Gould of the U.S. Court of Appeals for the Ninth Circuit, who has progressive
multiple sclerosis, underscores the significance of legal protections such as
the Americans with Disabilities Act (ADA) in ensuring that reasonable
accommodations are not a matter of discretion but a legally enforceable right.
He advocates for systemic reforms that balance accessibility with professional
excellence, emphasizing that disabled individuals should not be viewed through
the lens of charity but as professionals capable of delivering
high-quality legal work when provided with appropriate accommodations.
(ix) Nirmita
Narasimhan, a visually impaired lawyer and Policy Director at the Centre for
Internet and Society, has been instrumental in advancing digital accessibility
and policy reforms. A graduate of Campus Law Centre, Delhi University, with
additional degrees in German and Music, she played a key role in drafting
India’s National Policy on Universal Electronic Accessibility and has worked
extensively with government agencies to integrate accessibility into public
programs. Recognized with multiple awards, including the National Award for
Empowerment of Persons with Disabilities (2010), she highlights the challenges
of working with government institutions, where accessibility is often
overlooked and progress is slowed by bureaucratic hurdles. She emphasizes that
addressing these systemic hurdles as a broader governance issue affecting
everyone, rather than focusing solely on disability, would indirectly lead to
more effective accessibility reforms.
(x) Haben Girma, the
first deafblind graduate of Harvard Law School, has established herself as an
influential accessibility consultant, working to remove barriers that hinder
professionals with disabilities. She engages with legal materials using screen
readers, braille displays, and notetaking support. Highlighting
the challenges faced by blind legal professionals in accessing visual
information, she emphasizes the need for institutions to provide alternative
formats, such as text descriptions or tactile graphics. She underscores that
access to legal work is not just about individual effort but also about
systemic responsibility, urging legal institutions to proactively adopt
inclusive practices that ensure equal participation for professionals with
disabilities.
66.
Similarly, several other accomplished individuals who are blind or visually
impaired and part of the interview series, have excelled in the legal
profession and beyond, showcasing that visual impairment does not preclude
one’s ability to make significant contributions to the field of law. Richard
Chen, counsel in the corporate and securities practice group at Arnold &
Porter LLP, Isaac Lidsky, former clerk for U.S. Supreme Court Judges Sandra Day
O’Connor and Ruth Bader Ginsburg, a Harvard graduate (cum laude), founder of
multiple startups and nonprofits, and a New York Times best-selling author of
Eyes Wide Open, Milan Mittal, a lawyer at Indus Law, Rajesh Asudani, who began
his career as a railway announcer, later pursued law, and rose to become an
Assistant Manager at the RBI, and Shirish Deshpande, a faculty member at MNLU,
Nagpur, who pursued his studies at the University of Oxford—all stand as a
testament to the fact that disability is no bar to excellence in the legal
profession or any other field.
VI.
CONCLUSION
67.
The overall analysis would demonstrate that a rights-based approach
necessitates that PwDs must not face any discrimination in their pursuit of
judicial service opportunities, and instead, there must be affirmative action
on behalf of the State to provide an inclusive framework. Now, it is high time
that we view the right against disability-based discrimination, as recognized
in the RPwD Act 2016, of the same stature as a fundamental right,
thereby ensuring that no candidate is denied consideration solely on account of
their disability. Further, as extensively discussed, the principle of
reasonable accommodation, as enshrined in international conventions, established
jurisprudence, and the RPwD Act, 2016, mandate that accommodations be
provided to PwDs as a prerequisite to assessing their eligibility. In the light
of the above, any indirect discrimination that results in the exclusion of
PwDs, whether through rigid cut-offs or procedural barriers, must be interfered
with in order to uphold substantive equality. The commitment to ensuring equal
opportunity necessitates a structured and inclusive approach, where merit is
evaluated with due regard to the reasonable accommodations required, thereby
fostering judicial appointments that truly reflects the principles of fairness
and justice.
67.1.
Thus, after considering the pleadings, submissions of the learned counsel
appearing for all the parties, as well as the legal positions and case laws, we
conclude as follows:
(i) Visually impaired
candidates cannot be said to be ‘not suitable’ for judicial service and they
are eligible to participate in selection for posts in judicial service.
(ii) The amendment
made in Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and
Conditions of Service) Rules, 1994 falls foul of the Constitution, and is
hence, struck down to the extent that it does not include visually impaired
persons who are educationally qualified for the post to apply therefor.
(iii) The proviso to
Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of
Service) Rules, 1994 relating to additional requirements, violates the equality
doctrine and the principle of reasonable accommodation, and is hereby struck
down in its application to differently abled persons who have the requisite
educational qualifications for applying to the posts under judicial service.
(iv) Relaxation can be
done in assessing suitability of candidates when enough PwD are not available
after selection in their respective category, to the extent as stated in the
relevant paragraphs above, and in the light of existing Rules and Official
Circulars and executive orders in this regard, as in the present case.
(v) A separate cut-off
is to be maintained and selection made accordingly for visually-impaired candidates
as has been indicated in the relevant paragraphs in line with the judgment in
Indra Sawhney.
(vi) For the purpose
of rights and entitlements of persons with disabilities, particularly in
employment, and more specifically in respect of the issues covered in this
judgment, there can be no distinction between Persons with Disabilities (PwD)
and Persons with Benchmark Disabilities (PwBD).
VII.
RESULT
68.
In the upshot:
(i) Visually impaired
candidates are eligible to participate in selection for the posts under the
judicial service and hence, Rule 6A of the Madhya Pradesh Judicial Service
(Recruitment and Conditions of Service) Rules, 1994 is struck down insofar as
it excludes visually impaired and low vision candidates for appointment in
judicial service.
(ii) Rule 7 of the
Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules,
1994 to the extent of prescribing additional requirement of either a three-year
practice period or securing an aggregate score of 70% in the first attempt, is
struck down insofar as it applies to PwD candidates. The said rule will be
applicable to the PwD candidates insofar as it prescribes the educational and
other qualifications as eligibility criteria including the minimum
aggregate score of 70% (with relaxation as may be determined like in the case
of SC/ST candidates), but without the requirement of either that it should be
in the first attempt or that they should have three years’ practice. As a
sequel, the impugned order dated 01.04.2024 passed by the High Court and the
consequential notification dated 17.11.2023 issued by the High Court of Madhya
Pradesh, are set aside as against the PwD candidates and the appellant viz.,
Ayush Yardi and similarly placed persons, are entitled to be considered for participating
in the selection process in the light of this decision.
(iii) The order of the
High Court dated 11.01.2024 and the notification dated 18.02.2023 are set aside
as far as the appellant viz., Alok Singh and similarly placed persons are
concerned. The appellant and similarly placed persons who had participated in
the selection process, are entitled to be considered in the light of this
decision, and they may be appointed, if they are otherwise eligible in the
vacant posts after applying applicable relaxation as provided for in the
executive orders.
(iv) The writ
petitioners in WP (C) Nos. 484 and 494 of 2024, who contend that separate
cut-off was not applied in the Rajasthan Judicial Service Preliminary
Examinations, and consequently were not selected for the main examination,
shall be entitled to be considered in the light of this decision in the next
recruitment, if they so apply to the post notified along with the post unfilled
now and carried forward to the next recruitment by maintaining a separate
cut off and merit list for PwDs.
(v) The respective
authorities are directed to proceed with the selection process for appointment
of the judicial officers, in the light of this decision and complete the same,
as expeditiously as possible, preferably, within a period of three months, from
today.
69.
All the cases stand disposed of, on the above terms. No costs. Connected
Miscellaneous Application(s), if any, shall stand disposed of.
Post
the matters after three months “for reporting compliance”.
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