Wednesday, December 1, 2021

Temporary Disability Certificate subsumes the requirement of " long- term impairment", hence eligible to reservation in education under section 32 of RPWD Act.

Court:  Delhi High Court

Bench: Hon'ble Mr. Justice Prateek Jalan

Case title: Anmol Kumar Mishra (Minor) vs Union Of India And Ors 

Date of Judgement: 29 November, 2021


                            *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           +        W.P.(C) 13146/2021 with CM APPL. 41448/2021

             ANMOL KUMAR MISHRA (MINOR)         ..... Petitioner                                            


            UNION OF INDIA AND ORS                        ..... Respondents




PRATEEK JALAN, J. (Oral) The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].

1. Notice in the present petition was issued on 23.11.2021. Mr. Arjun Mitra, learned counsel for the respondent Nos. 2 and 3-Indian Institute of Technology ["IIT"], Kharagpur and Joint Seat Allocation Authority (JoSAA) 2021 respectively, has taken instructions and submits that no counter affidavit is required. The petition can, therefore, be decided on the documents on record, and is taken up for hearing with the consent of learned counsel for the parties.

2. The petitioner seeks admission to IIT, Kharagpur for the Electronics and Electrical Communication Engineering Dual Degree (B.Tech. plus M.Tech.) course. He suffers from a condition of visual impairment called keratoconus, and applied for admission in the category of Persons with Disability ["PwD"]. He was admitted to the course of his choice pursuant to the Joint Entrance Examination ["JEE"] conducted by the respondents. However, his admission was cancelled, as reflected on the admissions portal on 31.10.2021, and communicated to him by a communication dated 09.11.2021. The reason stated for the rejection of his candidature is that the disability certificate submitted by him mentions that his disability is temporary and "likely to improve".


3. The factual position is undisputed. The petitioner suffers from keratoconus, and originally submitted a disability certificate dated 14.01.2021, issued by the Issuing Medical Authority, South West, Delhi, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India. The certificate records that he has a 40% temporary disability in relation to both eyes as per the guidelines for assessing the extent of specified disability under the Rights of Persons with Disabilities Act, 2016 dated 04.01.2018 ["the Guidelines"] issued by the Government of India. The certificate is stated to be valid for one year, i.e. until 14.01.2022.

4. The petitioner was unsure of whether he satisfies the eligibility criteria of the PwD category and, therefore, addressed an email dated 21.04.2021 to each of the IITs. He mentioned in the said email that he has a certificate from a government hospital to the effect that he has 40% temporary disability under the "low vision" category, and that the certificate is valid for one year after which he has to re-check his disability and would be given a permanent disability certificate at that stage, if he qualifies. IIT, Kharagpur is the organizing institution for the JEE (Advanced) this year. The JEE office in IIT, Kharagpur informed the petitioner by an email dated 22.04.2021 that he is eligible to get a seat under the PwD category, subject to a valid PwD certificate and other eligibility criteria. He was asked to submit a PwD certificate with 40% disability in Form-II of the brochure of the JEE (Advanced) 2 21 ["the brochure"]. An email received from IIT, Bombay has also been placed on record, which shows that the petitioner was told that he was eligible under the PwD category, subject to submission of a valid PwD certificate. However, in this email, he was directed to submit a certificate in Form-IV.

5. The petitioner was allotted a seat in the PwD category in the course of his choice and opted to "freeze his choice", rather than to be considered for upgradation in subsequent rounds of allotment. He was required to have his PwD status verified, which was done at IIT, Kharagpur on 21.10.2021. An endorsement was made on his PwD category certificate, which reads as follows: -

"Documents verified. Temporary disability of 40% (Forty percent) due to low vision due to B/L Keratoconus which valid upto 14.01.2022."

This was also reflected in the status on the admissions portal.

6. The petitioner was thereafter asked to submit the certificate in Form-IV, which he obtained from DDU Hospital, Harinagar, New Delhi on 03.09.2021. The certificate was issued on the basis of the earlier disability certificate. It bears the same number as the original, and states that it is valid until 14.01.2022. A physical copy of the Form-IV certificate has been handed over in Court. It is an undisputed document and is taken on record. As with the original certificate dated 14.01.2021, it certifies that the petitioner suffers from a temporary disability of 40% in both eyes. In this certificate, however, it has also been mentioned that the petitioner's condition is "likely to improve", and it is on this basis that his candidature has ultimately been rejected. 


7. Mr. Md. Nizamuddin Pasha, learned counsel for the petitioner, submits that Clause 19.2 of the Guidelines specifically permits a temporary certificate if the condition is likely to worsen, and also for specific purposes, such as for pursuing education. He points out that a temporary certificate in cases of keratoconus is expressly contemplated. Mr. Pasha submits that neither the brochure published for this purpose, nor the Act makes a distinction between permanent and temporary disability. To the extent that the definition of "person with disability" in Section 2(s) of the Act itself contemplates a long- term impairment, the issuance of the certificate itself shows that the petitioner was suffering from a long-term impairment.

8. Mr. Pasha also submits that another candidate with a temporary disability has, in fact, been admitted to an engineering course on the basis of the same JEE examination. He has placed on record the certificate of the candidate in question (Anexure P-5 to the writ  petition) and the provisional seat allotment certificate issued to him (Anexure P-21 to the writ petition).

9. Mr. Mitra, on the contrary, submits that Clause 19.2 requires a disability be permanent to be certified. Mr. Mitra's contention is that the certificate dated 03.09.2021 finally submitted by the petitioner certified that his condition is likely to improve, and he was, therefore, not entitled to the benefit of reservation.


10. The right of PwD candidates to secure reservation in higher educational institutions is provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 ["the Act"]. The reservation is in respect of persons with benchmark disabilities ["PwBD"]. This term is defined in Section 2(r) of the Act. Where the specified disability is defined in measurable terms, it includes a person with not less than 40% of the specified disability. The term "specified disability" refers to disabilities mentioned in the Schedule to the Act. The Schedule to the Act, as far as visual impairment is concerned, includes persons with "low vision", into which category the petitioner admittedly falls.

11. The Ministry of Social Justice and Empowerment, Government of India has issued the Guidelines vide notification dated 04.01.2018 for evaluation and certification of specified disabilities. The Guidelines relate to various disabilities, including visual impairment. As far as visual impairment is concerned, the nature of the certification is provided for in Clause 19.2, and the assessment of impairment is provided in Clause 19.3. Clause 19.2 reads as follows: -

"19.2. Nature of Certificate: The medical authority will decide whether disability certificate should be temporary or permanent. The disability shall be permanent to be certified. The certificate can be temporary if condition is likely to worsen and also for specific purposes such as for pursuing education. The need of reassessment, if required, should be clearly mentioned in the certificate with time frame. In certain cases such as keratoconus, developmental defects, operated congenital cataract with corneal decompensation, operated congenital glaucoma with hazy cornea etc., the patient especially can be issued a temporary certificate."  (Emphasis supplied.)

12. In the light of the provisions of the Act, and particularly the Guidelines, I am of the view that the petitioner's case is merited. It may be noted that in the Act, the definition of "PwDs", "PwBDs" and of "specified disability" do not ex facie distinguish between temporary and permanent disabilities. The definition of PwD, to the extent that it incorporates the necessity of long-term impairment, itself subsumes this requirement. The petitioner is undisputedly a PwBD whose certificate mentions that his impairment is to the extent of 40%. The Schedule of the Act, while enumerating specified disabilities, also does not make a distinction between permanent and temporary impairment in the context of visual impairment. In contrast, while dealing with "speech and language disability" in paragraph 1D of the Schedule to the Act, it is specifically mentioned that the disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes must be permanent. In the absence of similar phraseology in paragraph 1B, which deals with visual impairment, no such condition can be read into the Act. 

13. The Guidelines also recognize keratoconus as a condition in which a temporary certificate may be given. The general rule under Clause 19.2 is that a disability would be certified if it is permanent. However, temporary certificates are expressly contemplated if the condition is likely to worsen, and also for specific purposes, such as for pursuing education. This case falls within the second category.

14. The petitioner placed the entire matter before the IITs by way of correspondence prior to filling up his form or taking the JEE. He was advised that he was eligible under the PwD category, subject to a valid PwD certificate and other eligibility criteria. The validity of his certificate is not in issue. What is now being raised is that a temporary disability is a disqualification to avail of the reservation. The fact that the petitioner's disability was temporary and his certificate was valid only for a period of one year was disclosed by him in his correspondence. The position taken by the respondents in their response to his emails is, in my view, consistent with the Act and the Guidelines. To the contrary, the contention in the impugned communication dated 09.11.2021 is that he is not eligible for the very reason that he had disclosed to the respondents.

15. This is an unduly restrictive interpretation. The Act is a beneficial legislation. While dealing with an earlier legislation on the same subject, the Supreme Court observed that the said Act was a social legislation for the benefit of PwDs and must be interpreted in order to fulfill its objectives3. The principle that beneficial legislations must be construed liberally with the objective of furthering their purpose is well settled4, and the same understanding must inform the interpretation of the Act. I am of the view that the impugned communication tends to adopt a restrictive interpretation which is not consistent with the object of the legislation. Of course, the benefits of the Act should be conferred upon those the legislature intended to be benefitted, but the Act does not make the distinction which the respondents have read into the legislative scheme.

16. Mr. Mitra submits that the case of a similar candidate with a temporary disability who was granted admission, is not a case of admission to IITs, but to one of the other institutions for which admissions are granted pursuant to the JEE (Mains) and not the JEE (Advanced). I am of the view that this distinction is of little relevance as the scheme of the reservation is similar.


17. For the aforesaid reasons, the writ petition succeeds, and the impugned communication of the respondents dated 09.11.2021 is quashed. The respondents are directed to take necessary consequential steps forthwith. There will be no order as to costs.

18. The pending application also stands disposed of.


NOVEMBER 29, 2021 


  • The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 
  • Union of India vs. National Federation of the Blind (2013) 10 SCC 772 [paragraph 37] 
  • Reference may be made in this connection to two recent judgments of the Supreme Court: DDA vs. Virender Lal Bahri (2020) 15 SCC 328 dealing with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Brahampal vs. National Insurance Co. (2021) 6 SCC 512 dealing with the Motor Vehicles Act, 1988.

Tuesday, November 23, 2021

Supreme Court - Rights of persons with disabilities are not be diluted but limiting them to only those with benchmark disabilities

Court: The Supreme Court of India

Bench: Dr Dhananjaya Y Chandrachud, Justice ,  A.S. Bopanna, Justice

Case No:  Civil Appeal No. 7000 of 2021 (Arising Out of SLP (C) No.18591 of 2021)

Case Title: Avni Prakash Vs. National Testing Agency (NTA) & Ors.

Date of  Order: 23 November 2021

Law//Act: The Rights of Persons with Disabilities Act, 2016, 

Judgement Authored by : Dr Dhananjaya Y Chandrachud, Justice


The Supreme Court (SC) has cautioned that the Rights of persons with disabilities should not be curtailed by the application of a higher threshold prescribed only for ‘persons with benchmark disabilities’.

The bench pronounced its verdict on a plea by a female National Eligibility cum Entrance Test (NEET) 2021 candidate with dysgraphia (which is a learning disability that inhibits the ability to write), who was agrreived by the denial  of an additional one hour’s time for attempting the paper by the examination centre. She had sought that she either be allowed to sit for a re-examination or be reasonably or proportionately compensated by way of grace marks or elimination of negative marking or otherwise.

Case in brief:

The appellant is a person with dysgraphia- a specified disability listed in 2(a) of the Schedule to the RPwD Act. Her disability has been assessed as 40 percent permanent disability-thus falls within the definition of  a person with a benchmark disability under Section 2(r) of the RPwD Act. She was denied the compensatory time while appearing for the NEET Examination conducted by the NTA. 

The Bench at SC framed issue as to whether the appellant was entitled to an hour’s worth of compensatory time owing to her PwD status under the NEET Bulletin 2021 and the Guidelines for Written Examination issued by the Union Ministry of Social Empowerment and Justice issued on August 29, 2018.

While the matter was heard at the Mumbai High Court, the National Testing Agency (NTA), had, on October 11, 2021 demanded the procurement of a medical certificate as per the format contained in Appendix VIII-A and from a designated centre specified in Appendix VIII-B of the Regulations on Graduate Medical Education (Amendment), 2019, in order to claim the one-hour compensatory time. 

However, the Supreme Court observed that it is evident from the format prescribed under Appendix VIII-A that it cannot be issued at a stage before the declaration of results, and will only be considered for admission to the medical courses. The bench held that:

“Para 5.4(b) of the NEET Bulletin 2021 (extracted above) indicates that the appellant was entitled to compensatory time of one hour for an examination of three hours, irrespective of her reliance on a scribe. Para 5.3 indicates that the requirement of a certificate in Appendix VIII-A applies after the results are declared.”

The court clarified that the Right to Inclusive Education is a right enforceable at the examination stage (as per Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (as per Section 32 under Chapter VI).

The distinction between Person with Disability (PwD) and Person with Benchmark Disability (PwBD)

The court then went on to establish the distinction between PwD and PwBD under the RPwD Act. It Reffering to its decision in Vikash Kumar vs. Union Public Service Commission, in which SC hgad rejected the submission that only PwBD candidates can be provided with the facility of a scribe and held that the petitioner was entitled to reasonable accommodation even if he did not suffer from a benchmark disability.

“These rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights. Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI.  Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability” clarifid the SC.

Hence, the standards of benchmark disabilities shall apply in situations where admission is sought into an institution of higher education under the five percent quota, in accordance with Section 32(1). However, the right to avail reasonable accommodation cannot be subjected to the same scrutiny.

Thus, the Right to Inclusive Education is a right enforceable at the examination stage (Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (Section 32 under Chapter VI).

The Court emphasised on the provisions envisaged under the RPwD Act with regard to inclusive education for PwD in Chapter III. Section 17 of Chapter III lays down specific measures to promote and facilitate inclusive education for students with disabilities. Among other inclusive measures, sub-section (i) provides for the duty of the State to make suitable modifications in the curriculum and the examination system to meet the needs of students with disabilities. This duty can be fulfilled by providing extra time for the completion of examination papers and/or the facility of a scribe. Section 18 provides that the government and local authorities are duty-bound to take measures to promote, protect and ensure participation of PwD in adult education and continuing education programmes on an equal footing with others.

The provision for reservation in Chapter VI specifically directed towards PwBD students is different from the provisions in Chapter III for PwD students. Essentially, it can be concluded that PwD encompasses a wider group, of which PwBD is a sub-set. The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination. The denial of reasonable accommodation to a PwD would certainly result in discrimination, especially when the same is denied by applying stricter thresholds meant only for PwBD.

The Court, therefore, held that there was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the NTA. The injustice meted out to the appellant occurred, noted the apex court, because of (i) a vague and imprecisely defined NEET Bulletin 2021, and (ii) the absence of adequate training to the second respondent which was allotted as the appellant’s centre.

Court’s directions

The bench, in accordance with the decision in National Testing Agency vs. Vaishnavi Vijay Bhopale, ruled out the possibility of conducting a re-examination for the appellant owing to impracticability and uncertainty due to delay in results. However, the Court emphasised that the NTA cannot shirk or abrogate its responsibility to rectify the injustice which had been caused to the appellant, and must therefore consider extrapolation of marks or grant compensatory marks or adopt a ‘no negative scheme’, after applying their mind, ruled the Court.

The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination.

The court further directed the NTA to strictly ensure that the provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act are clarified in the NEET Bulletin by removing ambiguity. It observed that, “Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD.”

Read the judgement below:

Thursday, July 22, 2021

Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly

Court: Madrash High Court, India

Bench: Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy 

Case No(s): W.P. No. 5957 of 2021(Lead Case) along with WP 38224 of 2005 and WP 923 of 2007

Case Title:     Vaishnavi Jayakumar Vs. State of Tamil Nadu & two Others (Lead Case)

Date of Hearing: 22 July 2021

Case Brief 

In a push for the rights and independence of people with disabilities in their commute, the Madras high court on Thursday restrained Tamil Nadu from purchasing any new bus to its fleet in the public transport system unless such buses were disabled-friendly as prescribed by law.

The first bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy passed the interim injunction on a batch of pleas that have been pending before the court for years including from as far back as 2005, seeking universal use of disabled-friendly buses in public tranport fleet. 

One of the writ petitions in the batch i.e. W.P. No. 5957 of 2021 had been filed by cross disability rights advocate, Vaishnavi Jayakumar. She had challenged a Government Order (GO) issued on February 24 this year, for introduction of only 10% of low floor buses and 25% of buses fitted with lift mechanism or any other suitable mode, to provide easy access to wheelchair bound passengers, out of the total buses to be procured for Metropolitan Transport Corporation (Chennai) Limited.

The petitioner had contended that the GO violates Section 41 of the Rights of Persons with Disabilities Act of 2016. The legislation requires the State government to take suitable measures to provide facilities for persons with disabilities at bus stops, railway stations and airports and also access to all modes of transport by even retrofitting old modes of transport wherever it was technically feasible.

She said the GO for introducing only 10% of low floor buses and those with lift mechanism was also in violation of Articles 14 (equality before law) and 21 (right to life) of the Constitution. “The GO is an arbitrary exercise of power by the State. It is not only in complete violation of the rights of persons with disabilities but also contumacious, since it violates several judicial orders,” she said.

The petitioner had sought to restrain the state from acquiring any further bus unless it conforms to the requirements of the Rights of Persons with Disabilities Act, 2016 and the Rights of Persons with Disabilities Rules, 2017 and under the latter, Rule 15 in particular. Rule 15 mandates that every establishment complies with the specified standard as indicated in a notification issued by the Government of India on September 20, 2016.

Advocate General R Shunmugasundaram said the government was purchasing disabled-friendly buses in phases because the roads were in bad shape and they would damage the low-floored buses.

Advocate Rita Chandrasekar, representing Metropolitan Transport Corporation, said the low floor buses cost ₹58 lakh each as against ₹26 lakh for regular buses and hence there was a delay in purchasing such buses.

The state's submission that low-floor buses were expensive and would be damaged by bad roads was rejected. The state has been submitting excuses of certain practical difficulties, particularly in finding resources not only to acquire the more expensive buses but also to create the road infrastructure required for such sophisticated buses. It sought more time to indicate a roadmap.

Rejecting their submissions, the bench in its order said, "In view of the mandate of the statute, read with the Rules framed thereunder and the notification published in accordance therewith, there may be no room to manoeuvre and little scope for the court to delay the implementation of the policy as reflected in the statute and the laws made thereunder.

The court further said in its order, "the State seeks time to indicate a road-map. However, it is necessary that the State be restrained from acquiring any further bus for the public transport system which does not conform to the specifications indicated in the notification of September 20, 2016 referred to above. In other words, the State will not acquire any new bus for use thereof as part of the public transport system unless such bus meets the standards indicated in the notification of September 20, 2016".

Read the interim order dated 22 Jul 2021, embedded below:

Tuesday, July 13, 2021

Madras HC rejects the argument that victim’s evidence could not be relied upon since she was blind

Madras High Court, rejecting the argument of the petitioner that victim’s evidence could not be relied upon since she was blind, said, “The victim as a blind lacks vision, but her version had vision and hence, this court holds that the evidence of the victim is admissible in evidence.”

According to the prosecution, auto driver Anbu Selvan was hired to transport the victim to her music class. However, he kidnapped her to a secluded location and sexually harassed her besides trying to kill her if she did not cooperate.

Challenging a trial court order awarding a seven-year jail term to him, Anbu Selvan moved the high court. Justice R M T Teekka Raman, however, termed Anbu Selvan as a ‘heartless person’ who had capitalised on the helpless situation of the visually challenged person and sexually assaulted her.

He is not entitled to reduction of sentence, not even for a single day, the judge asserted. Citing circumstantial and other evidence, the judge said, “Merely because of the disability, evidence of disabled persons cannot be treated as inferior in nature.”

Anbu Selvan had also argued, “The identity of the accused was not proved in the manner known to law and since the witness (victim) is a blind, her evidence cannot be termed as eye witness if at all, can be termed only as a hearsay witness which is inadmissible in evidence.”

The trial court convicted him for offences under sections 366 (kidnapping a woman), 354 (Assault or criminal force to woman with intent to outrage her modesty), 506 (ii) (Criminal intimidation) of the IPC and Section 4 (harassment of woman) of the Tamil Nadu Prohibition of Woman Harassment Act primarily based on the evidence of the victim woman.

Merely because a victim of sexual harassment had visual disability, her evidence against the culprit cannot become inadmissible, said the court, awarding seven-year imprisonment to an autorickshaw driver who assaulted the woman. The court then recommended the Tamil Nadu State Legal Services Authority to grant Rs 1 lakh as compensation to the victim under the Tamil Nadu Victim Compensation Scheme.

Thursday, July 8, 2021

CAT Delhi | Akhand Pratap Singh Vs. GNCT of Delhi & Others. | OA No.243/2021 | 08 Jul 2021

Central Administrative Tribunal
Principal Bench, New Delhi
Akhand Pratap Singh vs Govt. Of Nctd on 8 July, 2021
Bench: L. Narasimha Reddy
OA No.243/2021
This the 8th day of July, 2021
(Through Video Conferencing)
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)

Akhand Pratap Singh, S/o Shri Balbir Singh, R/o Kh. No.13/10 and 13/1, H.No.13 UGF, Gali No.13, Bhagat Colony, West Sant Nagar, Burari, Delhi-110084. Aged about 38 years                                                     ... Applicant Versus 1. GNCT of Delhi Through Chief Secretary, 5th Floor, Delhi Sachivalaya, I.P.Estate, New Delhi. 2. Delhi Subordinate Services Selection Board, Through Chairman, F-18, Karkardooma Institutional Area, Delhi-110092. 3. South Delhi Municipal Corporation, Through its Commissioner, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002. 4. North Delhi Municipal Corporation, Through its Commissioner, 4th floor, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002.                                      ... Respondents

Justice L. Narasimha Reddy:

The Delhi Subordinate Services Selection Board (Board), respondent no.2 herein, issued a notification in the year 2013 for selection to six posts of Assistant Law Officer, (ALO) to be appointed in the Municipal Corporations of Delhi. One of the posts was reserved in favour of Physically Handicapped Category (PH). The applicant was one of the candidates under that category. A written test comprising of Tier-I and Tier-II was held and a short list of the candidates, who cleared the same, was published on 02.11.2017. The name of the applicant figured therein. However, in the final result published on 01.06.2018, the applicant was shown at SI. No.2 in the PH category, and one Mr. Neel Mani was at SI. No.1.

2. The applicant contends that Mr. Neel Mani did not join the post on account of the fact that he was selected in CBI. It is stated that the applicant submitted a representation on 15.04.2019 with a request to consider his case for appointment against the available vacancy. Correspondences were also ensued among the applicant, NDMC, SDMC and the Board, i.e. respondent no.2. The Board refused to accede to the request of the applicant as well as the Corporations, on the OA No.243/2021 Item No.29 ground that the vacancy lapsed on 31.05.2019 in terms of Clause 11 of the advertisement. It is in this background, that the applicant filed this OA with a prayer to direct the respondents to consider his case for appointment to the post of ALO, with Post Code No. 47/2013.

3. The applicant contends that he was placed at Sl. No.2 in the selection list and once the candidate at Sl. No.1 did not join, he is entitled to be considered. It is also stated that the selection process was spread over 6 to 7 years and when he is at the verge of selection, the respondents are trying to deny him the benefit of selection.

4. The respondents filed separate counter affidavits. The Board contends that the selection process is governed by the various conditions stipulated in the notification itself, and the waiting list prepared for this purpose has elapsed on expiry of one year. They contend that the very requisition for the dossier of the next candidate was received from the Municipal Corporation on 03.06.2019 and by that time, the waiting list has lapsed.

5. Respondents No.3 and 4 filed their separate counter affidavits which in a way support the plea of the applicant.

6. Today, we heard Mr. Ajesh Luthra, learned counsel for the applicant, Mr. Anuj Kr. Sharma, learned counsel for the 2nd respondent - DSSSB, Mr. R.K. Jain, learned counsel for 3rd respondent and Mr. D.S. Mahendru, learned counsel for the 4th respondent.

7. The issue is in a very narrow compass. The notification was issued in the year 2013, and the selection as such has taken place only in the year 2019. The applicant was a candidate under PH category and he was placed at SI. No.2 in the merit list. Since only one post was available, he was put in the waiting list. Clause 11 of the advertisement reads as under:-

"11. The DSSSB shall draw a reserve panel/waiting list upto the extent of 10% of the posts notified, in addition to the number of candidates selected as per the notified vacancies. The reserve panel/waiting list shall be valid for a period of one year from the date of declaration of result and the vacancies arising due to non-acceptance of the offer of appointment, not joining the post after acceptance of appointment, the candidate not found eligible for appointment or due to resignation of selected candidates, within one year of joining the post, shall be filled up from this reserve panel/waiting list."

From this, it is evident that the waiting list would be in operation for a period of one year. In the instant case, the developments took place almost as flash points. The selected candidate, namely Mr. Neel Mani was issued an offer of appointment sometime in January, 2019. The Corporation OA No.243/2021 Item No.29 went on writing to the selected candidate to report to duty. The final notice was issued on 27.05.2019 and he was informed that if he does not join within three days, his appointment shall be deemed to have been withdrawn. Immediately thereafter, the 4th respondent forwarded the dossier of Mr. Neel Mani to 3rd respondent, for onward transmission to the Board. The formal cancellation of the candidature was done only on 31.05.2019.

8. If one takes into account, the very objective underlying the preparation and maintenance of wait list, it is only to avoid the possibility of the post remaining vacant even after the selection process was concluded. The selecting agency has to make huge efforts to filter the candidates and then publish the select list. If for any reason, a selected candidates do not join, the looser will not be just the candidate or the selecting agency, but the user department, and thereby public at large. Once the selection process in this case was spread over seven years, counting of a day this way or that way should not make much difference, particularly when the applicant is a candidate with physical disability. We are of the view that the existing vacancy of the post of ALO reserved in favour of PH category can be offered to the applicant, who is next in the merit.

9. We, therefore, allow the OA and direct the respondents to consider the case of the applicant for appointment as ALO against the vacancy reserved in favour of PH category after due verification, by treating that the wait list was alive, when the requisition was received. On being appointed, the applicant shall hold the office prospectively, without any benefit anterior to the date of appointment. The exercise in this behalf shall be completed within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

       (Aradhana Johri)                 (Justice L. Narasimha Reddy)
         Member (A)                                 Chairman


Monday, June 28, 2021

Supreme Court while upholding the Kerala HC judgement directed State of Kerala to provide reservation in promotion on all post after identifying said posts within 3 months.

Court: Supreme Court of India

Bench: Sanjay Kishan Kaul, J.

Case No. : Civil Appeal No. 59 of 2021

Case Title: The State of Kerala & Ors Vs.  Leesamma Joseph 

Date of Judgement: 28 June 2021


This was an appeal against the order of the Kerala High Court on the issue of reservation in promotion of a disabled women employee who was appointed on compassionate grounds and not on disability quota hence was not extended the reservation in promotion for disabled. The matter was persued before the Administrative Tribunal which dismissed her case.  However, the High Court subsequently overturned the Tribinual's order and allowed her case against which the State went to Supreme Court.  

The Supreme Court praised the Order of the High Court as salutary and expressed that it did not call for any interference. 

Supreme Court said, "In fact, what seems to emerge is that the appellant-State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases(supra). Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post.

Read the Judgement below:-

Tuesday, April 27, 2021

Supreme Court: Testimony of a witness with disability not inferior; intersectionality need to be taken in to account while determining the case.

Court : Supreme Court of India

Bench:  Hon'ble Chief Justice Dr Dhananjaya Y Chandrachud & Hon'ble Justice M R Shah

Case No: Criminal Appeal No 452 of 2021

Case Title: Patan Jamal Vali v. State of Andhra Pradesh

Citation: 2021 INSC 272

Date of Judgement: April 27, 2021


Testimony of a witness with disability cannot be considered inferior to that of their able-bodied counterparts only on account of the disability. Crimes against Women, Caste-based Violence, lntersectionality, Gender Evidence, Testimony of Person with Disability.

The case was about the rape of a girl with visual impairment belonging to a Scheduled Caste. The SC affirmed the conviction of the appellant for rape of the girl with visual impairment. The court discussed that it is imperative to take into account the inter sectionality while determining the case. The court emphasised that threats against women with disabilities in India are not uncommon and can lead to feelings of powerlessness. However, the court clarified that by this they did not mean to subscribe to the stereotype that persons with disabilities are weak and helpless, rather aim to highlight the increased vulnerability in such cases, and cited reports such as the 2018 report by Human Rights Watch. The court also gave certain guidelines including the need for Awareness-raising campaigns, in accessible formats, to inform women. 

Monday, April 5, 2021

USA: Justice Department moves unopposed motion to intervene as Plaintiff in a Disability Discrimination Suit Against City of Chicago Regarding Pedestrians with Vision Disabilities

Dear Colleagues,

This is a disability rights enforcement action by the Justice Department of United States of America against the City of Chicago, seeking to remedy the city’s failure to provide people who are blind, including those who are deaf-blind or have low vision, equal access to pedestrian safety information at intersection crossings, which the city provides almost exclusively through visual-only pedestrian signals.  The United States has sought declaratory, injunctive, and compensatory relief for this violation of Title II of the Americans with Disabilities Act of 1990. 

Having moved an unopposed motion to intervene as a plaintiff in this disability discrimination lawsuit filed by private plaintiffs American Council of the Blind of Metropolitan Chicago, Ann Brash, Maureen Heneghan and Ray Campbell against the City of Chicago under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), the Department of Justice found in its investigation that the allegations were true.

The complaint alleges that the city of Chicago fails to provide people who are blind, have low vision, or are deaf-blind with equal access to pedestrian signal information at intersections. Pedestrian signal information, such as a flashing “Walk/Don’t Walk” signal, indicates when it is safe to cross the street. 

Accessible pedestrian signals (APSs) are devices that provide pedestrians with safe-crossing information in a non-visual format, such as through audible tones, speech messages, and vibrotactile surfaces. Since at least 2006, Chicago has recognised the need to install APSs for pedestrians with visual disabilities. Yet, while Chicago currently provides sighted pedestrians visual crossing signals at nearly 2,700 intersections, it has installed APSs at only 15 of those intersections. 

Thus over 99% of Chicago’s signalised intersections subjects people who are blind, have low vision, or are deaf-blind to added risks and burdens not faced by sighted pedestrians, including fear of injury or death which in contravening the ADA and Section 504 that require that individuals with disabilities have equal access to public services, including access to pedestrian crossing information that is critical for safety and for full participation in community life.

Petition seeks to ensure that Chicagoans with disabilities are provided equal access to city services, particularly those services whose purpose is public safety.

The motion and complaint seeking intervention were jointly filed by the Disability Rights Section of the department’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of Illinois. 

Thursday, February 18, 2021

Calcutta High Court: Removal from Job solely on ground of disability is violative of RPWD Act 2016

Court:                   Calcuta High Court

Bench:                  Justice Ravi Krishan Kapur 

Case Title:           Dr. Shishir Kumar Biswas Vs. State of West Bengal & Ors.

Case No. :            W.P.A. 16042 of 2018

Date of Order:   18.02.2021


Case brief:

Calcutta High Court has ruled that removing a disabled person from a job solely on the ground of his physical disability is a violation of the Rights of PwD (Persons with Disabilities) Act of 2016 and has set aside an order removing a blind Professor from the position of Head of the Bengali Department by the Haringhata Mahavidyalaya, primarily on the ground of his physical disability.

The petitioner, Dr. Shishir Kumar Biswas, a blind professor at Haringhata Mahavidyalaya was removed from the post of Head of Bengali Department due to his physical disability. The court observed that the act was a violation of three provisions of the Rights of PwD Act, particularly Section 20 of the  Act, which states that there cannot be any sort of discrimination against a person with any kind of disability in a matter that is related to his employment. The petitioner stated that the act of the concerned college was a clear violation of his constitutional rights and is not only illegal but also against the morals and principles of natural justice.

The court noted that the memo dated 31st July, 2017, whereby the petitioner was removed, is in direct violation and contravention of the provisions of the Rights of Persons With Disabilities Act, 2016.

"On a perusal of the impugned Memo it is evident that save and except physical disability on the ground of eye blindness, there is no other ground alleged in the impugned Memo whereby the petitioner has been removed as Departmental Head from the Department of Bengali in the concerned college.

I find that impugned Memo is also in direct violation and contravention of the 3 provisions of the Rights of Persons With Disabilities Act, 2016 and particularly violative of the provisions of Section 20 of the said Act," the Bench said.

Section 20 provides that no Government establishment shall discriminate against any person with disability in any matter relating to employment. Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

The court observed that there is nothing on record to support the impugned actions taken by the Managing Committee of the college. It thus set aside the impugned memo and directed the Respondent-authorities to take appropriate steps in accordance with law.

Read the embedded judgement below:

Thursday, February 4, 2021

Kerala HC- Double Bench dismissed the appeal against Single Bench order that directed the aided private educational institutes to implement reservation under Disabilities Act.

Court: Kerala High Court 

Bench: Mr. Justice A.M. Shaffique and Mr. Justice Gopinath P. 

Case No. : WA.No.1237 OF 2020 (against the Judgement in WP(C) 4753/2020(T) OF Hight Court of Kerala Dated 26/8/2020)   (Heard with WA.1238/2020, WA.1239/2020, WA.1242/2020, WA.131/2021)

Case Title (lead Case) : Secretary, NSS College Central Committee  Vs.  Renjith  J.V.

Date of Judgement: 04 Feb 2021


Please refer to our earlier post titled Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities, dated 27 Aug 2022

The Respondent in the WP 4753 of 2020 had gone in appeal in the present case before the double bench, however the Bench dismissed the appeal finding no merits and that the contentions raised were similarly to many other cases already decided by the Supreme court of India.

The main contention urged on behalf of the Consortium of Catholic School Managements in Kerala was that Ext.P8 order cannot be enforced since no posts had been identified to be filled up in terms of Sections 32 and 33 of the 1995 Act and Sections 33 and 34 of the 2016 Act.

It was also contended that the posts which had been notified are relating to Government departments, Government schools and colleges and do not have any relation to the creation of posts with reference to aided schools and colleges. And, thefore, it was argued that unless the posts in such aided schools and colleges are notified in terms of the statutory provision, incorporating Exts. P3 to P7 Government Orders will not suffice.

The bench, however, did not find any of these arguments sustainable in light of catena of previoous judgements of the hon'ble Supreme Court, particularly, Justice Sunanda Bhandare Foundation v. Union of India [(2014) 14 SCC 383)]Government of India through Secretary and Another v. Ravi Prakash Gupta [(2010) 7 SCC 626], Rajeev Kumar Gupta v. Union of India and Others [(2016) 13 SCC 153]Indra Sawhney v. Union of India [1992Suppl (3) SCC 217], and therefore, dismissed the appeal.  

Read the detailed Judgement below: