Disabeld Candidates selected on own merit in open competition can't be adjusted against Reserved Disability Quota Vacancies.

Court: Supreme Court of India

Case: Civil Appeal No (s). 3303/2015  (arising out of Delhi HC Order dated October 11, 2013 in W.P.(C) 4902/2013 titled Union of India Vs. Pankaj Kumar Srivastava & Anr. )

Case Title: Union of India (Appellant)  Vs.  Pankaj Kumar Srivastava & Anr. (Respondent(s))

Date of Order: 01 March 2023

Brief Background:

In a significant development, the Central Government recently acknowledged before the Supreme Court that disabled candidates selected based on their own merit in open competition, alongside unreserved candidates, will no longer be counted within the 4% disability quota for public sector employment. This change is expected to result in more disabled candidates with lower merit rankings being chosen within the disability quota, ultimately increasing the overall representation of individuals with disabilities in public sector positions. 

This "own merit" principle for disabled candidates had been outlined in several DOPT Memorandums & other govt. circulars on reservations for persons  with disabilities previously, but it was not consistently followed by various public sector recruiting bodies. Shri Pankaj Kumar Srivastava, a visually impaired candidate, raised this grievance before the Central Administrative Tribunal (CAT). He alleged that the Union Public Service Commission (UPSC) was not adhering to the principle of own merit for the Civil Services Examination. Several disabled candidates, despite their merit ranking in the unreserved category, were being placed within the disability quota. If they had been categorized as unreserved, Mr. Srivastava, next in line in terms of merit, would have secured selection within the disability quota.

In the case, the UPSC argued that the "own merit" principle couldn't be applied to disabled candidates due to their relaxed medical standards and the use of accommodations such as scribes and extra time for examinations. However, both the CAT and the Delhi High Court disagreed with the UPSC's stance, directing a re-evaluation of the disability quota for the relevant year by moving "own merit" disabled candidates into the open category. 

The UPSC argued that the principle of general merit as evolved by the judicial pronouncements and incorporated in the DoPT OM dated December 29, 2005 is incapable of application in respect of PH Category as the medical standards are incapable of being relaxed for application of the said principle. The principle is unworkable in the scenario of reservation in favour of differently abled persons. The term relaxed standard has not been defined in case of persons with disability and no illustration of relaxed standards as given in respect of SC/ST have been provided in case of person with disability. And that a PwD candidate who would fail medical examination would not be adjusted against the unreserved vacancy and could not be counted on merits. If medical requirements are not relaxed it would not be possible to allocate service to the persons with disability. And lastly a PH category candidate cannot be a general merit candidates because at least he has to avail one or the other relaxation in the medical parameters.  

The Delhi HC said, "There cannot be two opinions about the applicability of the principle of general merit in the light of the Office Memorandum dated December 29, 2005 and April 26, 2006 issued by the petitioner itself. The same is the situation reflected in the mandate under Rule 17 of the CSE Rules 2008. Thus it is not possible for the petitioner to contend before us that there is an error in the order of the Tribunal in issuing directions to consider the entitlement of the applicants on the basis of said principle. We affirm the view taken by the Tribunal with regard to its observation that grant of the facility of scribe and extra time of 30 minutes in the examination to the visually impaired candidates does not amount to relaxation of standards in their favour. The omission on the part of the executive i.e. DOPT which is the Nodal Department to issue Office Memorandum/Executive Instructions on matters pertaining to the Central Service has created a situation wherein the benefit is sought to be given on the one hand through the issuance of Office Memorandum(s) dated December 29, 2005 and April 26, 2006, and stands taken away by the other hand as a result of the inaction to issue the consequential amendment contemplated by Rule 17 of the CSE Rules, 2008.

The court further said that the Petitioner (Govt.) has itself caused a situation, whereby the entitlements which ought to have been available to the differently abled persons as early as on February 07, 1996 (the date of the commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) are being denied to them till today. The situation points out to a grim scenario which is the creation of the petitioner itself. The bench directed the Govt. to make the amendments as contemplated by Rule 17 fo CSE Rules 2008 and upheld the order of the CAT.

Appeal before the Supreme Court:

The matter was further appealed by UPSC in the Supreme Court of India which also rejected the UPSC's position and instructed the Government of India to issue a clarificatory circular to enforce the own merit principle. In compliance, the Government issued an clarifying Office Memorandum on September 27, 2022 on subject: Reservation for Persons with Benchmark Disabilities - Clarification with regard to the concept of own merit.

During the hearing on March 1, 2023, the Supreme Court directed that the OM dated 27 September 2022 be followed in all future selection processes strictly.

Access the Delhi High Court Judgement in W.P.(C) 4902/2013 titled Union of India Vs. Pankaj Kumar Srivastava & Anr.:

Madras HC raps a private school for refusing to admit a child with autism

Court:  High Court of Judicature at Madras

Bench: Hon'ble Jutice C.V. Karthikeyan

Case No.: W.P. No. 24973 of 2022

Case Title: The Child Vs. State of Tamilnadu 

Date of Judgement:  22.02.2023

Brief:

Fuming over the denial of admission to a special needs child, the Madras High Court rapped a school run in the name of a missionary for not following the principles of the missionary and betraying her name and Christian faith.

Justice CV Karthikeyan made the comments while disposing of a petition filed by a minor child who was denied admission at a popular missionary school in Vellore. Quoting previous judgments on admitting children with special needs in schools under the right to education act, the judge said the courts have always been sensitive to children with special needs, expressing hope that educational institutions would not betray children with special needs.

“The sixth respondent (school) has failed not only in this duty but also betrayed the name of the noble Missionary and extremely, extremely distressingly their Christian faith,” he deplored. The order was passed on the petition filed by the minor child, represented by her mother, currently residing at Gandhi Nagar, Katpadi in Vellore, seeking orders from the school to admit the child.

The child, diagnosed with mild autism spectrum disorder, was earlier admitted to a CBSE school in Padur. After the covid lockdown, the child developed some difficulties and was taken to the National Institute for Empowerment of Persons with Multiple Disabilities (NIEPMED) at Kovalam in Chennai.

The mother, a government officer, got transferred to Vellore and the father resigned from his job to take care of the child before the child was at the CMC Hospital in Vellore in 2021 for assessment and was confirmed special needs child.

After several schools denied admission citing a lack of special educators, the mother approached the missionary school in 2022 for admission. After holding a written examination and an interview with the child, the school refused admission saying that it had no special educators to take care of the child.

The mother, in her affidavit, stated that the website of the school had sported messages about having special teachers to support students with special education needs. Aggrieved over the denial of admission, she approached the concerned government authorities before moving to the High Court.

The judge said the sixth respondent/school is quite pathetically and ironically named after a third-generation American Medical Missionary in India. It makes him wonder whether those in administration today are riding on that name without following her principles or the core conduct which the noble lady adhered to.

Saying that the missionary, who lived between 1870 and 1960 dedicated her life to assuaging the plight of Indian women and worked tirelessly helping those afflicted with ‘bubonic plague, cholera and leprosy’, the judge said, “Very very unfortunately, her name is used by an institution which had taken a conscious decision to drive away a child and her parents, who had sought refuge and admission.”

Finding a touch of hollowness in the belated offer of admission to the school, he felt that such an offer should have been given voluntarily. The judge said the court would not stand in the way of decision-making by the mother. 

“I hope that if at all the mother takes a decision to admit the child in the sixth respondent, they would prove false my words expressed above and if they do so, I shall be the most satisfied person. The entire issue is in their hands,” he said concluding the verdict.

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