Kerala HC | Seema Lal & Ors Vs. State of Kerala & Ors | WP(C).No.15436 OF 2017(S) | 22 Jan 2020

Dear colleagues,

Boom in medical tourism in Ayurveda, Kerala - God's own country, has seen proliferation of therapeutic services. With a large number of professional nurses, trained paramedical manpower, the State has also seen rise in Therapy Centres focussed on improving functional abilities and management of disabling conditions in children with disabilities. 

Several parents of children with disabilities having felt exploited at the hands of these institutions and against unprofessionally managed services with least care to child rights,  had raised a campaign for regulation of these institutions in 2015. It was learnt by parents that neither the department of health nor the social justice, women and child departments had any authority to regulate these therapy centres. These centres simply ran under the Shops and Establishements Act in the name of regulation. Several media stories led to ordering of a probe by the then Ernakulam district collector M Rajamanickam to order a probe by health department. The state child rights commission also passed directives to the state government seeking regulations. However not much change happened on the ground forcing the parents to move Kerala High Court through a writ petition. During the course of hearings, and as a result of several interim orders, Government of Kerala state took some actions to regulate these institutions. 

The Court has passed its judgement on 22 Jan 2020 in this matter titled 'Seema Lal & Ors Vs. State of Kerala & Ors' WP(C).No.15436 OF 2017(S).

In its judgment, the court has asked the state to issue the guidelines and ensure that all centres are registered with a fixed timeline. The Govt. has accordingly issued notifications, wherein the qualifications of all therapists are defined, and specifications have been issued while setting up therapy centres. Now, all therapy centres providing services to persons with disabilities under a regulatory mechanism need registration before a competent authority notified by government as per Section 49 of Rights of Persons with Disabilities Act, 2016.

This is a step in right direction and must be followed up in other States as well.

Download a copy of the Judgement

Kerala High Court
Petitioners:        Seema Lal and Ors
Respondents:     State of Kerala and Ors
Case No. :          WP(C).No.15436 OF 2017(S)
Date of Order:    22 Jan 2020

Copy of the Judgement :- Download  or read below.

SC once again reaffirms reservation in promotion for persons with disabilities in Siddaraju Vs. Govt. of Karnataka case [Judgement Included]

Court: Hon'ble Supreme Court of India

Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian
Case Title: Siddaraju vs The State Of Karnataka on 14-15 January, 2020
Case No.: CIVIL APPEAL NO. 1567 OF 2017

Date of Judgement: 14-15 Jan 2020

Author: Rohinton Fali Nariman

Brief:

Dear Colleagues,

Please refer to our following earlier posts on various attempts of the Union of India to deny reservation in promotion for persons with disabilities citing Indra Sawhney Judgement,

1. Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A, B, C and D alike [01 Jul 2016]
2. SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion [03 Mar 2015]
3. SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well [10 Oct 2014]
4. Physically Challenged Versus Logically Challenged [10 Dec 2013]

On 14 Jan 2020, a three judge Bench of Hon'ble Justice Rohinton Fali Nariman, Hon'ble Justice Aniruddha Bose and Hon'ble Justice V. Ramasubramanian while hearing Civil Appeal  No. 1567 OF 2017 titled Siddaraju Vs. State of Karnataka and Ors and batch of connected matters, once again reiterated its earlier stand on reservation in promotion for persons with disabilities allowing reservation in promotion for persons with disabilities in all the groups alike vis. Gp A, B, C or D.

A two judge bench of the SC had earlier clarified the same issue in matter titled Rajeev Gupta Vs. Union of India decided on 30 Jun 2016 had held that the bar against reservation in promotion in the Indra Sawhney judgment did not apply to persons with disabilities. The Court had then held that wherever posts are identified as suitable for persons with disabilities, 3% reservation must be given in direct recruitment as well as in promotion for employees with disabilities in Group A and B as it is given in Group C and D. The Govt. of India decided to however,  challenged it once again when the matter was referred to the present three judge bench to decide the question whether persons with disabilities were entitled to being granted reservation in promotion in view of the bar against reservation in promotion in the Indra Sawhney judgment along with batch of connected matters.

The lead case this time was Siddaraju vs The State Of Karnataka. In the instant case,  a disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The High Court dismissed his case in March 2016, before the SC judgment in Rajeev Kumar Gupta’s case was pronounced. Siddaraju appealed before the Supreme Court, and on 05 Jan 2017, a two judge bench presided over by Justice Adarsh Kumar Goel referred the matter to a larger (i.e. three judge) bench. Justice Goel’s bench felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration.

The three judge bench has once again reiterated its stand that Indra Sawhney judgement only applied to reservations under Art 16(4) of Constitution of India in favour of backward classes being a vertical reservation. The reservation in favour of persons with disabilities was covered under Article 16(1) and was a horizontal reservation and did not affect the total 50% ceiling of reservation.

Below is the judgement delivered on 14-15 Jan 2020 in the lead case Siddaraju vs The State Of Karnataka:

Supreme Court on Reservation of NEET seats - "when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts.

Court: Supreme Court of India

Bench: Hon'ble Justice Arun Mishra, Hon'ble Justice M.R. Shah and Hon'ble Justice B.R. Gavai

Case No: WRIT PETITION (C) NO. 885/2019

Case Title: Vidhi Himmat Katariya and others Vs  The State of Gujarat and others

Date of Judgement: October 04, 2019

Citation: 2019 INSC 1137; SCC Online SC 1318

Brief:

The Petitioners were students appearing for the NEET Exam for admission to MBBS Courses across the country. They sought to be considered persons with disabilities eligible to claim reservation under the PwD Category. The regulations of Graduate Medical Education in MCI were amended in 2019 and whereby Appendix ‘H’ came to be added to the erstwhile Regulations, 2017 – providing for minimum degree of disability to be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. Appendix ‘H’ further provided that in case of ‘physical disability or locomotor disability’, the applicant may be assessed for “Both hands intact, with intact sensation, sufficient strength and range of motion” as essential to be considered eligible for medical course”.

Therefore, the medical board denied admission to Petitioners under persons with disabilities category by stating that they are not eligible for reservation under this category under the amended Regulations.

Petitoners claimed that the relevant provisions of Regulations, 2019 – “Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered” has been applied by the State Government to non­suit the petitioners for medical course in an arbitrary manner and without application of mind. 

Petitioners appealed to the Appellate Medical Board, which upheld the previous decision. Therefore, the petitioners approached the Supreme Court under Article 32 for relief. The Court ruled in favour of the state and declined to grant admission to the petitioners by stating as below:

"Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation, sufficient strength and range of motion’. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides."

Judgement:

Court of SCPD expresses displeasure on indifference and arrogant behaviour shown by bureaucrats in implementing RPwD Act 2016 [Judgement Included]

Dear colleagues,

The present case is a classic example of how the siloed approach on the part of the responsible officers at the helm makes it extremely difficult for a statutory authority like the Court of State Commissioner for Persons with Disabilities (SCPD) to perform their statutory functions.  The Hon'ble Court raises concern in its order in the present case on arrogantly irresponsive, indifference and ineffective approach  which as per the court is indeed a matter of grave concern and can have serious consequences for the persons with disabilities as an extremely proactive approach is needed to facilitate implementation of the socially beneficial Act. 

In the instant case, titled as Case No. 324/1101/2018/06/6061-6064  Dated: 24.09.2019 Suo Motu Vs. Commissioner (T&T), Delhi initiated on the complaint of a decorated Air Force veteran named Group Captain Prabal Malakar (Retd.), who is a wheelchair user and happens to be the Honorary Secretary, Multiple Sclerosis Society of India-Delhi Chapter about the problems of accessibility he faces while visiting hotels and cinema halls in the city. While most respondents took immediate action on the advise of the Hon'ble Court, the respondent  The Commissioner (Trade and Taxes), Govt. of NCT of Delhi who deals with the hotels in the city, did not respond even to several record of proceedings. 

Though the Hon'ble Court of SCPD could have easily enforced the attendance of the respondent under Section 82 of the Act or could have taken punitive provision under section 93 of the Rights of Persons with Disabilities Act, it chose to express its displeasure in its order in the following terms: 

"This reminds me of Dr. Naresh Chandra Saxena, former IAS Officer’s recent Book, “What Ails the IAS and Why It Fails to Deliver” in which he describes how the new reforms that are initiated fail to make any impact because most officers resist change and or are indifferent to the poor and the marginalised ones.  In the context of this case and a few others that I have dealt with as the State Commissioner for Persons with Disabilities during the last two and a half years, much of the deprivation of the rights and entitlements of persons with disabilities happens due to inadequate awareness, sensitivity, indifference to their plight and shying away from their responsibility at almost all the levels.  Its preponderance and pervasiveness at higher echelons has most detrimental effect.   

It further goes on to record,  "I am recording my unpleasant experience and the observations in this order with much reluctance and anguish and I am not relishing having to do so. In fact, I am doing so with a heavy heart and under a painful necessity respecting the call of my bounden duty. I feel that I will be failing in my duty if I let go of the lackadaisical approach, apathy and irresponsiveness for as long a period as five months by Commissioner of Excise, Entertainment and Luxury Tax in November 2018 and eight months by the Commissioner of Trade and Taxes in July 2019 only to say that they cannot and would not do anything in the matter coupled with the arrogance on the part of the public authority especially at the helm of affairs. This manifests abdication of obligation and shying away from the responsibility is a matter of serious concern. No effort should be spared to ensure that the credibility quotient of public/govt. authorities is kept at an all-time high if the RPwD Act is to be implemented in letter and spirit."

The Hon'ble Court of SCPD has passed its order as below:

(i) The respondent Department should send out at least a communication to all the Hotels and Restaurants operating in NCT of Delhi and to the President of the Federation of the Hotels and Restaurants Associations of India to ensure accessibility to their premises (built environment) by 15th June, 2022 and provide accessible public facilities and services to persons with disabilities with immediate effect as the date for the same is already over on 15th June, 2019 as mandated in the RPwD Act, 2016 under intimation to the State Commissioner for Persons with Disabilities.  I will of course continue taking up with them as well as with the civic authorities and make appropriate recommendations.

(ii)  I reiterate my recommendation to the worthy Chief Secretary, Govt. of NCT of Delhi that a workshop should be organised urgently for officers at all levels in the NCT of Delhi/Corporations etc. and at regular intervals thereafter to make them aware of  the provisions of the RPwD Act and their obligations under it and review the status of implementation of the provisions of the Act.  Need for such workshops has been brought to my notice by various stakeholders, more particularly by the primary stakeholders based on their bitter experiences and the feedback of the participants of the 9 workshops that this court has organised on the provisions of the RPwD Act and reservation for persons with disabilities in collaboration with UTCS since July 2017.

The respondent is duty bound under Section 81 of the RPwD Act 2016 to inform the court of the action taken on the recommendations made by the court within three months.

Read the Court Judgement in the above Case No. 324/1101/2018/06/6061-6064 Dated: 24.09.2019 here (in Word file)  and here (in PDF file)

Delhi High Court Order on recognition of Indian Sign Language as one of the Official Languages

Court: Delhi High Court

Bench: Justice D.N. Patel and Justice C. Hari Shankar

Case No. :WP(C) No. 9546/2018

Case Title: Nipun Malhotra Vs. Union of India

Date of Decision: 09 July 2019

Authored by: Justice DN Patel

 Download:   [PDF 1 MB]

Supreme Court says people above 50% of hearing and visual disability can not perform as judge! [Judgement included]

Dear Colleauges,

Please recall my earlier posts "Can a blind person work as a judge?" and subsequently  "Want to become a judge?" and "A step further to ensure that Blind can function effectively in Courts" on this subject. 

However, a Supreme Court bench of Justice Ashok Bhushan and Justice KM Joseph on 22 Jan 2019 in the case titled V. Surendra Mohan vs. State of Tamil Nadu, shattered all my progressive writings and efforts to see more blind judges in India. The bench upheld the Tamil Nadu State’s policy of restricting the eligibility of blind and deaf candidates for the reserved posts of 'civil judge' to those with 40-50% of their respective disabilities. The SC Bench held,   "A judicial officer in a state has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable  and that it does not contravene any of the provisions of the Disabilities Act 1995 or any other statutory provision."

I have seen judges's inherent biases and pre-conceived notions about disabling conditions often reflected in their judgements referring to persons with disabilities as unfortunate, crippled, wheelchair bound. This shows their lack of knowledge on disabling conditions and disability rights, however, this judgement has left me totally shaken. A common man's ignorance is pardonable, but for MyLords, whose pen has the ability to impact fate of millions of Indians with disabilities, it can be devastating for the hopes of many of them. The judges need to be well read and aware about the evolving capabilities of persons with disabilities with the advent of technology and science and the concept of reasonable accommodation that the UN Convention on the Rights of Persons with Disabilities provide. It is easier to label some one as 'incompetent' than set your own house in order. That is what the judiciary has done through this judgement despite the post of a judge identified as suitable to be held by a blind person by the Expert Committee constituted  by govt. of India, a bench renders them unsuitable!. Technically the bench should have refrained from stepping in to the shoes of the Expert Committee.

In the instant case, a person with seventy (70) percent blindness was denied appointment as a judge because he was more than fifty (50) percent threshold, the specified outer limit set by the Tamil Nadu State. Surprisingly, the Supreme Court came to the conclusion in the case that persons with more than the specified range of blindness are not eligible because they cannot perform functions of a judge!

In the background that several blind lawyers and judges are functioning well and the post is also identified as suitable for persons with disabilities by an Expert Committee under the Persons with Disabilities Act 1995 and that the Act makes no restrictions of degree of  percentage of disabilities for providing job reservations and other benefits etc which are equally available to all persons above 40% disabilities, this judgement looks absurd.  Instead of holding that differentiation based on extent of blindness is invalid and working towards facilitating accessibility of ICT, processes and reasonable accommodations for judges with blindness, the Court decided to justify the decision of the Government and the Madras High Court, which took a stand that completely blind persons cannot perform the so called strenuous tasks of reading, writing, communicating, examining witnesses, following procedures, advising advocates, etc.

Background of the case

In 2012, the Tamil Nadu Public Service Commission received a requisition from the State Government for filling up the vacancy posts of Civil Judge. The Commission wrote a letter to both the State Government as well as the High Court proposing to notify the percentage of disability as 40%-50% for partially blind and partially deaf for selection. The High Court communicated its approval to the aforesaid proposal which was also consented to, by the State of Tamil Nadu. The TNPC subsequently went on to publish the notification.

V. Surendra Mohan applied for the role of civil judge, however, his application was rejected on the ground that he was 70% blind (instead of below 50%). He challenged this decision in the Madras High Court upon which he was permitted to sit for the interview. Following his interview, Mohan’s application was again rejected. As a result, V. Surendra Mohan filed a writ petition in the Madras High Court. In 2015, the High Court held that the TNPC’s decision was lawful as it was in line with the State’s policy.

In 2019, Mohan appealed to the Supreme Court, challenging the rejection of his application as well as the policy on the basis of which his application was rejected, alleging it as arbitrary and unjustified.

The Bench comprising Justice Ashok Bhushan and Justice KM Joseph rejected this submission. It remarked that “a judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction”.

The Supreme Court’s view that a totally blind person cannot function as a judge is trashed by live examples of  several successful blind judges in India and beyond. Accessible work place, computers with screen reading softwares, pleadings and documents in accessible format and reasonable accommodations is what is needed for their inclusion and this makes so many lawyers and judges do wonderfully well in their workplace.

Surprisingly, neither the State government or the High Court nor the Supreme Court have given any reasons as to justification of  50% disability cut-off when Persons with Disabilities Act makes so such distinction. No empirical evidence or research has been put forward to support that beyond the 50% threshold, a person would not be able to effectively perform his duties as a judge.  Supreme Court blindly relies on the government wisdom on this 50% cut-off, without questioning its scientific basis. It is also unclear as to how an advertisement by TNPSC pursuant to a “letter” from the government attained the status of an overriding legal norm. This matter wasn't referred to by the State to the Experts Committee. Decision was taken by babus based on their own whims and fancies and since it affected judiciary, the court also felt safe as they had not to change any infrastructure to accommodate a blind judge in their system. It is almost another level of apartheid visible in the present order. 

The present judgement also literally backtracks its own judgement dated 22 January 2019 wherein the Hon'ble Supreme Court had set deadlines to make public places accessible to persons with visual impairment. It had expressed that “it becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well.”  Instead of providing level playing field, this judgement deprives blind candidates from their established legal right  arbitrarily. This order is a black spot on the image of Indian Supreme Court which has otherwise been very proactive for the rights of marginalised communities and has always batted for their inclusion in constitutional spirit. Therefore, this needs to be remedied soon in coming days.

Read the judgement in PDF below in V. Surendra Mohan vs. State of Tamil Nadu, Civil Appeal No. of 83 of 2019:

Insurance Company denies health insurance on the basis of disability - Court of Chief Commissioner approached

Dear Colleagues,

Please refer to my earlier posts "IRDA proposes life insurance cover for persons with disabilities" and "Extra premium or reduced insurance cover, both discriminatory against disabled". 

A Bengaluru based banker with visual disability has preferred a complaint in the Court of Chief commissioner for Persons with Disabilities against Religare for denying him health insurance policy on the grounds of his blindness. The 63 year-old banker Mr. TR Raghu Kumar has optic nerve atrophy (ONA), a condition of permanent vision loss caused due to damaged optic nerve, in March 1991. 

“I suddenly lost my eyesight; I woke up one morning to know that my vision has been affected. This can happen to anybody,” he said. He bought a health insurance policy from Religare for Rs 5 lakh and paid one-year premium of Rs 16,597 on October 26, 2018. “I had declared my condition in the insurance proposal and submitted a copy of the medical certificate,” he added.

A month later, Raghu received a call from the company stating that his insurance was rejected as he was totally blind and the premium was refunded. Alleging discrimination, Kumar wrote to the commissioner for persons with disabilities on November 29.

Responding to an email query, Religare said Kumar’s insurance proposal was declined due to ONA. “ONA can be caused by multiple reasons and not limited to trauma (including stroke), tumour, decrease in oxygen or blood supply, infections, disorders or hereditary reasons. There was no ascertainment with regard to the cause in his proposal. We cover persons with any kind of disability (physical/visual/hearing), provided there’s no co-existing health condition that’s in contravention with our medical underwriting guidelines,” Religare said.

However, Kumar said the company never asked him anything pertaining to the cause of ONA. “I’ve submitted the disability certificate which is self-explanatory. The company collected money for the premium and rejected my proposal without raising any question. This is nothing but discrimination against a disabled person,” he added.

Source: Times of India 

Delhi HC - JNU should work out the mandate of the RPWD Act, so that every person with disability, who qualifies get admission. [Judgement Included]

Court: Delhi High Court

Bench:  Hon'ble The Chief Justice  and Hon'ble Mr. Justice V. Kameswar Rao

Case No.: W.P.(C) 3817/2018

Case Title: National Federation of Blind Vs. Union of India

Date of Judgement: 12 Nov 2018

Cases refereed:

• Sambhavana v. Union of India and Ors. W.P.(C) 3919/2014 decided on March 4, 2015;
• Students Federation of India and Ors. v. Union of India and Ors. W.P(C) 3032/2017 decided on October 1, 2018 
• and the Supreme Court in the cases of Justice Sunanda Bhandare Foundation v. Union of India (UOI) and Ors. (2017)14 SCC 1; Union of India and Ors. v. National Federation of Blind and Ors. 2013 10 SCC 772,

Brief:

The petition is filed seeking relief that the selection to M.Phil / Ph.D and Ph.D. courses in respondent Jawahar Lal Nehru University (JNU) has to be on relaxed standards and on the basis of the marks obtained both in written examination and viva-voce.

The bench observed that, "We cannot ignore the fact that Dharamveer Yadav despite qualifying the selection process could not get admission as there was only one reserved seat for a disabled candidate and not two. Also, we find that many reserved seats, at least 15 have gone waste as no person with disability could get qualified, against the said seats. In such an eventuality and in peculiar facts of this c ase, the Court is of the viewthat the Respondent No.3 shall increase the intake to 8 in the “Comparative Political Theory” stream, which shall be supernumerary, which shall get lapsed after Dharamveer is awarded the degree. His admission shall also consume one seat of the unfilled seats reserved for PWD, which could not be filled for want of candidates".

The further observed, "That apart, this court is of the view that the respondents cannot dilute the mandate of the Section 32 of the Disabilities Act, and reduce the reservation to less than 5%." 

The bench clarified, "It is for the University to work out the mandate of the Act, so that every person with disability, who qualifies get admission. But in no case they can violate the mandate."

Read the judgement below:

LPG dealership not a poverty alleviation scheme so as to come under Section 37 of The Rights of Persons with Disabilities Act, 2016, opines Bangalore HC

Poverty alleviation is for consumers- says Karnataka High Court, rejecting plea that questioned oil companies reserving only 3 per cent of LPG dealerships for people with physical challenges.

The High Court has refused a plea by an organisation working for the welfare of physically challenged persons to reserve five per cent of LPG dealerships to such people. The HC said that it cannot apply Section 37 of The Rights of Persons with Disabilities Act, 2016 as the LPG dealership given by State-owned oil companies are not government welfare schemes where this rule needs to be applied.

Karnataka Rajya Vikalchetanara Rakshana Samiti approached the HC against Indian Oil Corporation, Bharat Petroleum, Hindustan Petroleum and the Union Government challenging a notification by these companies that wanted to select 238 LPG distributors.

As per the RPD Act, the reservation for physically challenged persons is five per cent. But the notification had reserved only 6 distributorships for the physically challenged instead of 11, it was argued. This was less than 3 per cent.

The HC however said that the distributorship is not a welfare measure. It said, “In the overall comprehension of the matter, we are satisfied that even if the award of LPG distributorships, essentially a matter of commercial contract, is a welfare measure and leads to manifold empowerment and all-round development of society, it cannot be termed as a notified scheme for poverty alleviation and development.”

The court also said that poverty alleviation in LPG is directed at consumers and not distributors. So, reservation for distributors under the Act was not possible. It said, “Needless to reiterate that the availability of LPG to the persons below poverty line may be correlated with the poverty alleviation, but that relates to the consumers and not to the distributors.”

The division bench of Chief Justice Dinesh Maheshwari and Justice S Sunil Dutt Yadav refused to consider the distributorship licencing as a poverty alleviation scheme. It said, “The award of LPG distributorships is taken up essentially by the three State-owned oil companies and is not any notified scheme of the appropriate Government or local authorities, which could be classified as a poverty alleviation and development scheme.”

Noting that three per cent of the distribution agencies are already reserved for physically challenged persons, the HC said, “The provision for reservation by the respondent Oil Companies, who are the agencies and instrumentalities of the Government, prima facie indicates their attention to the requirements of the persons belonging to different classes and categories. However, for that matter, we find no reason to issue a mandamus to provide for extra reservation for persons with disabilities by operating Section 37” of The Rights of Persons with Disabilities Act, 2016.

However, the HC said that claims of other concessions in application fee and financial assistance can be sought by making appropriate representation to the concerned authorities.

Supreme Court: MCI Expert Committee's opinion cannot be allowed to override a statutory provision mandating medical institutions to provide 5% reservation to persons with disabilities.

Court: Supreme Court of India

Bench: Hon'ble Justice Arun Mishra and Hon'ble Justice Indira Banerjee

Case No: WRIT PETITION (C) No. 669 OF 2018

Case title: Purswani Ashutosh (Minor) Through Dr. Kamlesh Virumal Purswani Vs Union of India & Ors

Date of Judgement: 28 Aug 2018

Brief:

The Petitioner, who appeared for the NEET UG Examination for the 2018-19 session was denied benefit of reservation for persons with disabilities, despite having low vision impairment and being eligible for 5% reservation for specific benchmark disability under the RPwD Act, 2016 and MCI's Medical Education Regulation 4(3). 

An MCI expert committee determined that individuals with a visual impairment below 40% would not be admitted to the MBBS course.  Aggrieved by this he approached the Court.

The question which arises in this writ petition under Article 32 of the Constitution of India is, whether a person with benchmark disability of low vision, within the meaning of Section 2(r), read with Clause 1B of the Schedule, of the Rights of Persons with Disabilities Act, 2016 can be denied the benefit of reservation for admission to the MBBS Medical Course.

The court said that the argument of MCI that Section 32 is not attracted since it only provides for reservation to higher educational institutions and not to technical institutions imparting technical education, appears to be fallacious since higher educational institution is a generic term which would include institutions imparting all kinds of higher education, including technical education, whereas technical institution is a specific term for those institutions which only impart technical education.

The court, rejecting the opinion of the committee, held that its opinion cannot be allowed to override a statutory provision (Medical Regulations) mandating medical institutions to provide 5% reservation to persons with disabilities. It held that the RPwD Act, 2016 as well as Medical Regulations by MCI was binding on the institution and thus no expert committee's opinion could be given primacy over the same. Thus, it held that the petitioner cannot be denied admission if he qualifies as per his merit in the category of persons with disabilities.

Judgement: