# AVNI PRAKASH v. NATIONAL TESTING AGENCY (NTA) & ORS

- **Citation:** [2021] 11 S.C.R. 891
- **Court:** Supreme Court of India
- **Decided:** 2021-11-23
- **Case number:** Civil Appeal No. 7000 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/avni-prakash-v-national-testing-agency-nta-ors-34779
- **Pages:** 46

## Headnote

Rights of Persons with Disability Act, 2016:
ss. 2(r), 17(i), 32, Schedule Entry 2(a) - Person with
disability(PwD) - Compensatory time of one hour to write entrance
exam - Claim of - Appellant student sufferring from Dysgraphia
with disability of 40 per cent, appeared for the NEET (UG) - Claim
of additional one hour of compensatory time owing to her PwD
status - Initially assurance by the designated centre that if the rules
prescribed, facilities for PwD would be provided, however,
compensatory time of an hour not granted, and her paper forcibly
collected after three hours - Writ petition by appellant seeking
direction to the National Testing Agency-first respondent to hold a
fresh examination for the appellant while accommodating her with
all relaxations and benefits - Dismissed by the High Court - On
appeal, held: Individual injustices originating in a wrongful denial
of rights and entitlements prescribed under the law cannot be sent
into oblivion on the ground that these are a necessary consequence
of a competitive examination - All authority under the law is subject
to responsibility, and to a sense of accountability - Appellant
wrongfully deprived of compensatory time of one hour while
appearing for the NEET without any fault of her own, despite her
entitlements as a PwD and a PwBD - Appellant denied her
entitlement to reasonable accommodation and the State failed to
fulfil its positive duty of protecting her right to inclusive education
- Appellant suffered injustice by a wrongful denial of these
relaxations which first respondent was bound to scrupulously
enforce - Lack of remedy would cause irretrievable injustice to the
life of the appellant - Though the relief sought for holding a
re-examination for the NEET (UG) is denied since it would cause
uncertainty and chaos, however, issuance of directions to first
[2021] 11 S.C.R. 891
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[2021] 11 S.C.R.
respondent to consider steps to be taken to rectify the injustice -
First respondent to ensure that provisions made at the NEET in terms
of the rights and entitlements available under the Act are clarified
in the NEET Bulletin by removing ambiguity - Owing to the confusion
between the authorities, persons working for the first respondent
and the exam centres to be sensitised and trained, on a regular
basis.
Object of the 2016 Act - Held: Effective participation of the
students with disabilities in the society is the beneficial object of
the legislation - Safeguards provided by the law must be duly
enforced and any breach of entitlement must be answerable at law
- Responsibility and power without accountability are anathema to
the Constitution.
ss. 2(r), (s) - Persons with disabilities and Persons with
benchmark disabilities - Distinction between - Stated.
s. 2(m) - Inclusive Education - Right to Inclusive Education
- Held: Inclusive education is indispensable for ensuring universal
and non-discriminatory access to education - Convention on Rights
of Persons with Disabilities recognises that inclusive education
systems must be put in place for a meaningful realisation of the
right to education for PwD - Thus, a right to education is essentially
a right to inclusive education - 2016 Act provides statutory backing
to the principle of inclusive education - Right to inclusive education
is realised through the provision of reasonable accommodation,
denial of which to a PwD amounts to discrimination - On facts, the
appellant was denied her entitlement to reasonable accommodation
and the State failed to fulfil its positive duty of protecting her right
to inclusive education.
Disposing of the appeal, the Court
HELD: 1. The relief sought by the appellant for holding a
re-examination for the NEET (UG) is denied. The appellant was
wrongfully deprived of compensatory time of one hour while
appearing for the NEET without any fault of her own, despite her
entitlements as a PwD and a PwBD. The first respondent is
directed to consider what steps c

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AVNI PRAKASH
v.
NATIONAL TESTING AGENCY (NTA) & ORS.
(Civil Appeal No. 7000 of 2021)
NOVEMBER 23, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
A. S. BOPANNA, JJ.]
Rights of Persons with Disability Act, 2016:
ss. 2(r), 17(i), 32, Schedule Entry 2(a) - Person with
disability(PwD) - Compensatory time of one hour to write entrance
exam - Claim of - Appellant student sufferring from Dysgraphia
with disability of 40 per cent, appeared for the NEET (UG) - Claim
of additional one hour of compensatory time owing to her PwD
status - Initially assurance by the designated centre that if the rules
prescribed, facilities for PwD would be provided, however,
compensatory time of an hour not granted, and her paper forcibly
collected after three hours - Writ petition by appellant seeking
direction to the National Testing Agency-first respondent to hold a
fresh examination for the appellant while accommodating her with
all relaxations and benefits - Dismissed by the High Court - On
appeal, held: Individual injustices originating in a wrongful denial
of rights and entitlements prescribed under the law cannot be sent
into oblivion on the ground that these are a necessary consequence
of a competitive examination - All authority under the law is subject
to responsibility, and to a sense of accountability - Appellant
wrongfully deprived of compensatory time of one hour while
appearing for the NEET without any fault of her own, despite her
entitlements as a PwD and a PwBD - Appellant denied her
entitlement to reasonable accommodation and the State failed to
fulfil its positive duty of protecting her right to inclusive education
- Appellant suffered injustice by a wrongful denial of these
relaxations which first respondent was bound to scrupulously
enforce - Lack of remedy would cause irretrievable injustice to the
life of the appellant - Though the relief sought for holding a
re-examination for the NEET (UG) is denied since it would cause
uncertainty and chaos, however, issuance of directions to first
[2021] 11 S.C.R. 891
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respondent to consider steps to be taken to rectify the injustice -
First respondent to ensure that provisions made at the NEET in terms
of the rights and entitlements available under the Act are clarified
in the NEET Bulletin by removing ambiguity - Owing to the confusion
between the authorities, persons working for the first respondent
and the exam centres to be sensitised and trained, on a regular
basis.
Object of the 2016 Act - Held: Effective participation of the
students with disabilities in the society is the beneficial object of
the legislation - Safeguards provided by the law must be duly
enforced and any breach of entitlement must be answerable at law
- Responsibility and power without accountability are anathema to
the Constitution.
ss. 2(r), (s) - Persons with disabilities and Persons with
benchmark disabilities - Distinction between - Stated.
s. 2(m) - Inclusive Education - Right to Inclusive Education
- Held: Inclusive education is indispensable for ensuring universal
and non-discriminatory access to education - Convention on Rights
of Persons with Disabilities recognises that inclusive education
systems must be put in place for a meaningful realisation of the
right to education for PwD - Thus, a right to education is essentially
a right to inclusive education - 2016 Act provides statutory backing
to the principle of inclusive education - Right to inclusive education
is realised through the provision of reasonable accommodation,
denial of which to a PwD amounts to discrimination - On facts, the
appellant was denied her entitlement to reasonable accommodation
and the State failed to fulfil its positive duty of protecting her right
to inclusive education.
Disposing of the appeal, the Court
HELD: 1. The relief sought by the appellant for holding a
re-examination for the NEET (UG) is denied. The appellant was
wrongfully deprived of compensatory time of one hour while
appearing for the NEET without any fault of her own, despite her
entitlements as a PwD and a PwBD. The first respondent is
directed to consider what steps could be taken to rectify the
injustice within the stipulated period. Further, it should take
necessary consequential measures under intimation to the
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Directorate General of Health Service. In the future, the first
respondent should ensure that provisions which are made at the
NEET in terms of the rights and entitlements available under
the Rights of Persons with Disability Act 2016 are clarified in the
NEET Bulletin by removing ambiguity. Having due regard to the
decision of this Court in Vikash Kumar's case and the statutory
provisions contained in the 2016 Act, facilities which are provided
by the law to PwD would not be constricted by reading in the
higher threshold prescribed for PwBD. It is clarified that for the
purpose of availing of the reservation under Section 32 of the
Act or an upper age relaxation as contemplated in the provisions,
the concept of benchmark disability continues to apply. The second
respondent was ignorant about the facilities to which the appellant
was entitled. There was an evident confusion between the
authorities working at the first respondent as well. The persons
working for the first respondent and exam centres like that of
the second respondent should be sensitised and trained, on a
regular basis, to deal with requirements of reasonable
accommodation raised by PwDs. [Para 57][935-C-H; 936-A-B]
2. Dysgraphia is contemplated as a specified disability in
Entry 2(a) of the Schedule to the Act. Dysgraphia causes impaired
handwriting and demonstrates inconsistent handwriting, poor
spelling and spacing, transcription difficulties and difficulties in
coherence. Through the appellant's certificates, it is evident that
she is a PwBD having dysgraphia, for the purposes of Section
2(r) of the RPwD Act 2016. [Para 20][914-G; 915-D]
3.1 The first respondent, as a testing agency, has been
assigned specific functions which are clarified in the NEET
Bulletin 2021. The instant case demonstrates that the appellant
who suffers from dysgraphia with a disability of 40 per cent has
suffered a tragedy of errors in the process leading up to admissions
for the graduate medical courses in 2021, over which she had no
control. The first respondent, was duty-bound to comply with the
Guidelines on Written Examination, prescribed by the Ministry
of Social Justice and Empowerment. The grievance of the
appellant is that she was deprived of the compensatory additional
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one hour for attempting the examination, simply because the
second respondent (the designated centre) was unaware of the
rights of PwD candidates and the corresponding obligations on
the second respondent. This state of affairs reflects the
responsibility of the first respondent to ensure that personnel at
examination centres are trained and provided with clear guidelines
for the implementation of the provisions made for PwD. In the
absence of adequate training, rights conferred on candidates with
"specified disabilities" by Parliament, are set at nought.
[Paras 30, 31][920-F-H; 921-A-B]
3.2 On 11 October 2021, the first respondent's counsel
informed the High Court that the appellant was not entitled to
get an additional one hour of compensatory time because of a
failure to obtain a disability certificate in Appendix VIII-A from a
centre designated in Appendix VIII-B. In the face of this
statement, the counsel for the appellant agreed to produce a
certificate from an authorized agency in Appendix VIII-B of the
NEET Bulletin 2021, within a week. The High Court accordingly
directed the first respondent to consider the certificate within a
week of its production by the appellant. It is unfortunate that the
first respondent issued such instructions to its counsel. The
statement of the first respondent before the High Court on 11
October 2021 was plainly contrary to the provisions of the NEET
Bulletin 2021. Para 5.4(b) of the NEET Bulletin 2021 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. If this
were not so, there is no purpose in requiring the candidate to
disclose the rank which is obtained in the NEET. It is as clear
from paras 5.3.1, 5.3.3, 5.3.4 and 5.3.5 that a certificate issued by
a designated centre under Appendix VIII-B is to be considered
only at the stage of admission. Yet, in the teeth of the specifications
in paras 5.3.1, 5.3.3 and 5.4(b) of the NEET Bulletin 2021, the
High Court was led to believe that an Appendix VIII-A certificate
from a designated centre specified in Appendix VIII-B was
required to seek an extra hour of compensatory time. There is
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evident confusion between the authorities working at the first
respondent, which has led to a tragedy affecting the legitimate
rights and entitlement of a student who suffers from a specified
disability. [Paras 32, 33][921-C-H]
3.3 The expression 'person with benchmark disability' is
defined in Section 2(r). The concept of benchmark disabilities is
thus specifically with reference to the provisions of Chapter VI
of the RPwD Act 2016. In contrast with the definition in Section
2(r), the expression 'person with disability' is defined in Section
2(s). The rights and entitlements conferred upon PwD are
specified in Chapter II. Among those rights, Section 3 embodies
the duty of the appropriate government to ensure that PwD enjoy
the right to equality, a life with dignity and respect for their
integrity equally with others. Sub-section (5) of Section 3 requires
the appropriate government to take necessary steps to ensure
reasonable accommodation for PwD. Section 4 requires the
appropriate government and all local authorities to take measures
to ensure that women and children with disabilities enjoy rights
equal with others. 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), 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. It is
evident that despite the clarification of the position in law in Vikash
Kumar's case, the law continues to be violated and NTA has
continued to restrict the grant of facilities only to PwBD. By way
of abundant caution, it is reiterated that the facility of reservation
in terms of Section 32 is available to PwBD. Other facilities
contemplated by the RPwD Act 2016 for PwD cannot be so
restricted by an administrative order which would be contrary to
the provisions of the statute. [Paras 35, 36, 37][922-E, F-G;
923-A-B, D-G; 924-A, H; 925-A-B]
AVNI PRAKASH v. NATIONAL TESTING AGENCY (NTA)
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4.1 Education plays a key role in social and economic
inclusion and effective participation in society. Inclusive education
is indispensable for ensuring universal and non-discriminatory
access to education. The Convention on Rights of Persons with
Disabilities recognises that inclusive education systems must be
put in place for a meaningful realisation of the right to education
for PwD. Thus, a right to education is essentially a right to inclusive
education. The RPwD Act 2016 provides statutory backing to
the principle of inclusive education. Section 2(m) defines inclusive
education. [Para 38][925-C-D]
4.2 The RPwD Act 2016 contains provisions mandating
reasonable accommodation. The expression "reasonable
accommodation" is defined in Section 2(y). The right to inclusive
education is realised through the provision of reasonable
accommodation. It has been emphasised that reasonable
accommodation is at the heart of the principle of equality and
non-discrimination espoused under the RPwD Act 2016. The
denial of reasonable accommodation to a PwD amounts to
discrimination. It is the positive obligation of the State to create
the necessary conditions to facilitate the equal participation of
disabled persons in society. [Para 41][926-B, C-E]
4.3 The appellant was denied her entitlement to reasonable
accommodation and the State failed to fulfil its positive duty of
protecting her right to inclusive education. The Guidelines for
Written Examination dated 29 August 2018 issued as an Office
Memorandum by the Ministry of Social Justice and Empowerment,
hold the field insofar as the written examinations for PwD
candidates are concerned. [Para 42][926-G-H; 927-A]
4.4 In terms of the provisions of RPwD Act 2016, there is a
clear distinction between the rights available to a candidate such
as the appellant at the stage of the examination (in terms of the
provisions of Section 17(i) falling under Chapter III) and the rights
applicable at the stage of admission (under Section 32 falling under
Chapter VI) of the RPwD Act 2016. There was a gross miscarriage
of justice in this case by the High Court directing the appellant,
who is aggrieved by the denial of a compensatory one hour, to
seek a certificate in terms of Appendix VIII-A, on the basis of a
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statement made by the counsel for the first respondent. The
confusion has also arisen because of the manner in which NEET
Bulletin 2021 has been drafted. A clear-eyed information bulletin
must provide a distinction between the rights that are available
to PwD candidates at the stage of the examination and the rights
which are available in terms of reservation after the results of
the NEET are declared. As a result of the ambiguity in the NEET
Bulletin 2021, and the absence of adequate training to the second
respondent which was allotted as the appellant's centre, the
appellant lost the benefit of a compensatory hour during the course
of the entrance examination. This injustice was compounded by
the manner in which the proceedings took place before the High
Court where the instructions given to the counsel for the first
respondent were in the teeth of the rights and entitlements
available in terms of the Guidelines for Written Examination dated
29 August 2018 and para 5.4(b) of the NEET Bulletin 2021. The
Guidelines for Written Examination hold the field for all
examinations attempted by PwDs. As a matter of fact, it would
appear that para 5.4(b) of the NEET Bulletin 2021 seeks to enforce
and implement this requirement. As a consequence of these
compounding errors, the appellant has suffered a grave injustice.
[Paras 43, 44][928-C-H]
5.1 The line of submissions by the first respondent seems
to suggest that besides the provisions under Para 5.3 and 5.4 of
the NEET Bulletin 2021, it proposes to issue further guidelines
to stakeholders, especially to candidates; invigilators; centre
supervisors; observers; and city coordinators. However, this
does not address the issue at hand, which is the steps that the
first respondent must take to deal with cases such as that of the
appellant where the student has been made to suffer. This
suffering was, firstly, a consequence of inadequate knowledge at
the designated centre (the second respondent), in regard to the
facilities available to PwD students; and secondly, by an element
of ambiguity in the instructions framed in the NEET Bulletin
2021. [Para 45][929-A-C]
5.2 One way of looking at the matter, as the first respondent
would have the Court do, is to accept that in a competitive
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entrance examination such as the NEET, a large body of candidates
appears across the country. According to the viewpoint espoused
by the first respondent, individual cases of prejudice caused by
an improper application of the norms governing the examination
constitute an acceptable, though unfortunate, consequence. The
other way of looking at the problem is that while the first
respondent must utilise the experience gained in conducting the
NEET process to proactively take steps to fill up deficiencies,
the examination process must continue to account for the need
to rectify injustice caused to a student, who played no role in
causing such injustice. The number of cases where such injustices
take place maybe a few or more than that; but it cannot be ignored
that for a student who is made to suffer, the consequence is indeed
serious. The entire course of a career depends upon the proper
conduct of the NEET and, the application of a binding norm
prescribed by the Ministry of Social Justice and Empowerment
for the benefit of students suffering from disabilities. An authority
bound by the dicta of law and the Constitution, cannot throw up
its hands in despair, instead of attempting to remedy the injustice
which is caused to a student. A judge cannot ignore that behind
the statistics is a human face, reflecting the aspirations, joy and
tears of a student and her family. [Para 46][929-C-H]
5.3 In the instant case, the appellant does not claim
misfeasance on the part of the first respondent but plain and simple
negligence in complying with the rights and entitlements provided
to PwDs under the RPwD Act 2016. For effective participation of
the students with disabilities in the society, which undoubtedly is
the salutary object of the legislation, the safeguards which are
provided by the law must be duly enforced and any breach of
entitlement must be answerable at law. Responsibility and power
without accountability are an anathema to our Constitution.
[Para 47][929-H; 930-A-B]
5.4 The first respondent is justified in taking the stance
that a re-examination cannot be ordered for one student. The
option of a re-examination for a single student would also stand
eschewed by the decision in Vaishnavi Vijay's case. Holding a
fresh examination will delay medical admissions and cause
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uncertainty and chaos. To that extent, the denial of the relief
sought for conducting a fresh examination for the appellant is not
disturbed. At the same time, the first respondent must factor in
the possibility of such errors occurring in the process of conducting
the NEET. The manner in which the first respondent deals with
cases of serious prejudice, as in the instant case, has to be decided
by it as an expert agency. [Paras 48, 50][930-B-C; 932-B-D]
5.5 This Court would eschew the course of dictating the
manner in which the grievance should be rectified, leaving it to
the discretion of the testing agency which is entrusted with the
overall responsibility of conducting the examination. The first
respondent took certain steps as noted in Vaishnavi Vijay's case.
Similarly, in the instant case, this Court is of the categorical view
that the first respondent cannot shirk or abrogate its responsibility
to rectify the injustice which has been caused to the appellant.
The first respondent may consider extrapolation of the marks
awarded to the appellant or grant compensatory marks. Similar
to the steps in Vaishnavi Vijay's case, the first respondent could
also consider adopting a 'no negative marks' scheme. The first
respondent is not restricted to only the above options and will
leave the decision on the modalities of remedying the injustice
caused to the appellant to the first respondent. The injustice which
has resulted is clearly due to a breach in observing the
entitlements due to the appellant under the RPwD Act 2016.
[Para 51][932-D-G]
5.6 The given statement indicates that the appellant has
secured an All India Rank of 1721 out of 2684 candidates qualified
in the PwD category. In relation to the State of Maharashtra, the
appellant has secured rank 249 out of 390 candidates in the PwD
category. The first respondent has stated that approximately
15.4 lakh candidates appeared at the NEET (UG) 2021 on
12 September 2021 for which the result was declared on
1 November 2021 and the All India Rank was forwarded on
9 November 2021 to the Ministry of Health and Family Welfare,
Government of India to conduct counselling for admission. It was
submitted that alteration of the result at this stage would
prejudicially affect other candidates who are ranked above the
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appellant. In essence, the above submissions boils down to the
first respondent informing the Court that in an examination of
such large proportions where over 16 lakh students registered
and over 15 lakh students appeared, it would not be possible to
undo the injustice which has been done to a single candidate.
The first respondent must remember that all authority under the
law is subject to responsibility, and above all, to a sense of
accountability. The first respondent is governed by the rule of
law and by the constitutional requirement of observing fairness.
Behind the abstract number of '15 lakh students' lie human lives
that can be altered due to the inadvertent, yet significant errors
of the first respondent. [Paras 53, 54][934-C-G]
5.7 The first respondent, as an examining body, was bound
to scrupulously enforce the Guidelines for Written Examinations
which provides for specific relaxations. The appellant has suffered
injustice by a wrongful denial of these relaxations and a lack of
remedy by this Court would cause irretrievable injustice to the
life of the student. The RwPD Act 2016 prescribing beneficial
provisions for persons with specified disabilities would have no
meaning unless it is scrupulously enforced. The all authority under
the law is subject to responsibility, and above all, to a sense of
accountability. Individual injustices originating in a wrongful denial
of rights and entitlements prescribed under the law cannot be
sent into oblivion on the ground that these are a necessary
consequence of a competitive examination. [Paras 55, 56]
[934-G-H; 935-A, B-C]
National Testing Agency v. Vaishnavi Vijay Bhopale SLP
(C) 17027 of 2021; Vikash Kumar v. Union Public
Service Commission (2021) 5 SCC 370 - relied on.
Vidhi Himmat Katariya v. State of Gujarat (2019) 10
SCC 20 : [2019] 12 SCR 821 - referred to.
Case Law Reference
(2021) 5 SCC 370
relied on
Para 37, 41, 57
[2019] 12 SCR 821
referred to
Para 42
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.7000 of
2021.
From the Judgment and Order dated 29.10.2021 of the High Court
of Judicature at Bombay in Writ Petition (L) No. 21578 of 2021.
Rushabh Vidyarthi, Manjeet Singh Rathor, Vikas Jain, Advs. for
the Appellant.
Rupesh Kumar, Adv. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Introduction................................................................... 3*
B
Applicable laws and guidelines .................................. 9*
B.1 Guidelines for Written Examination.......................... 9*
B.2 NEET Bulletin 2021 ..................................................10*
C
Submissions.................................................................14*
D
Analysis ........................................................................19*
D.1
Obligations under the NEET Bulletin 2021 ..... 20*
D.2
Applicability of the RPwD Act 2016 ................28*
D.2.1 Distinction between PwD and PwBD...............28*
D.2.2. Right to Inclusive Education ...........................32*
E
Redressing the injustice ...........................................37*
F
Conclusion ...................................................................45*
 Introduction
1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of the
High Court of Judicature at Bombay dated 29 October 2021. The High
Court dismissed the appellant's petition under Article 226 of the
Constitution.
3. The appellant suffers from Dysgraphia, which is a specified
disability listed in Entry 2(a) of the Schedule to the Rights of Persons
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Ed. Note - *denotes the actual pagination in the Original Judgment.
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with Disability Act 20161. The appellant has been diagnosed with a 40
per cent permanent disability, falling within the statutory definition of a
'person with benchmark disability'2 under Section 2(r) of the RPwD
Act 2016. The appellant claims that as a person with disability3, she is
entitled to reasonable accommodation and certain relaxations. Among
them is the benefit of "inclusive education" by a suitable modification to
the examination system, as mandated by Section 17(i) of the RPwD
Act, 2016. The Ministry of Social Justice and Empowerment has issued
guidelines for conducting "Written Examination for Persons with
Benchmark Disabilities" on 29 August 20184. These guidelines govern
the examinations of all students covered by the RPwD Act 2016. They
are to be followed by all examining authorities and educational institutions
conducting regular or competitive examinations. The National Testing
Agency - the first respondent, is responsible for conducting the National
Eligibility cum Entrance Test5 for admission to under-graduate medical
courses. The appellant urges that the Guidelines on Written Examinations
are referenced in clauses 5.3 and 5.4 of the Information Bulletin of the
National Eligibility cum Entrance Test (UG)-20216 issued by the first
respondent, and are hence binding on them.
4. The appellant appeared for the NEET on 12 September 2021.
Given her PwD status, she claimed a relaxation in terms of an additional
hour of compensatory time, as against the total time of three hours
prescribed for regular candidates. The appellant was allotted the second
respondent (Thakur College of Engineering and Technology, Kandivali
[East], Mumbai) as her centre for undertaking the NEET. The appellant
averred that the second respondent was ignorant of the grant of special
facilities that had to be provided to PwD candidates. The grievance of
the appellant is that the second respondent had initially assured her that
facilities for PwD, if prescribed in the rules, would be provided to her.
However, towards the end of the scheduled duration of three hours, her
answer sheet was "forcibly" collected together with the category of
regular students appearing for the examination depriving her of
compensatory time.
1 "RPwD Act 2016''
2 "PwBD''
3 "PwD''
4 "Guidelines on Written Examinations''
5 "NEET''
6 "NEET Bulletin 2021''
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5. On 23 September 2021, the appellant moved a writ petition
under Article 226 of the Constitution before the High Court of Judicature
at Bombay. Among other alternative reliefs, she sought a direction to the
first respondent to hold a fresh examination for the appellant while
accommodating her with all relaxations and benefits to which she was
entitled under the rules and regulations.
6. On 11 October 2021, the High Court passed the following interim
order:
"1. The petition seeks an order and direction against the respondent
no.1 to re-appear for NEET Entrance Test by providing her with
compensatory time and all other relaxations/ benefits that she is
entitled to by virtue of her "person with disability" status.
2. It is the case of the petitioner that she obtained disability
certificate on 6th June 2021 from Sion Hospital certifying that the
petitioner was suffering from Dysgraphia and recommending the
remedial measures. The petition obtained another certificate of
learning disability on 15th September, 2021 issued by the Sion
Hospital.
3. The petitioner produced these certificates with the respondent
no. 2 college, who conducted the said NEET test on behalf of the
respondent no.1. It is the case of the petitioner that the petitioner
being disabled, could not complete the paper within three hours
assigned for the said test and had been requesting for an additional
hour time to complete the said test. The respondent no.2 however
did not grant additional hour. By ad-interim order dated 30th
September 2021, this Court directed the respondent nos.1 and 3
not to declare the result of the petitioner.
4. Mr. Rodrigues, learned counsel for the respondent no.1 on the
other hand strongly placed reliance on the information Bulleting
issued by the respondent no.1 for NEET (UG-21) and more
particularly clauses 5.3.1, 5.3.3, 5.3.4, 5.3.5, 5.4(b) and Appendix
XIII-A and Appendix-B. He submits that the petitioner not having
obtained disability certificate as per the format prescribed in
Appendix XIII-A and Appendix-B read with the above referred
clauses of the said information Bulletin, the petitioner was not
entitled to get additional one hour compensatory time for the
examination of three hours assigned for examination under clause
AVNI PRAKASH v. NATIONAL TESTING AGENCY (NTA)
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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5.4 of the said information Bulletin. It is submitted by the learned
counsel on instruction that if the petitioner produces the disability
certificate from one of the centres recognized by the respondent
no. 1 referred in Appendix VIII-B, the case of the petitioner would
be considered.
5. It is not in dispute that the respondent no. 3 college permitted
the petitioner to appear for the said NEET test though the petitioner
had produced the learning disability certificate issued by the Sion
Hospital without raising any objection. It is the case of the petitioner
that the petitioner had made a request to give the benefit of clause
5.4(b) for compensatory time of one hour for the examination of
three hours. The petitioner had not used the facility of any scribe.
6. In view of the statement made by the learned counsel for the
respondent no.1 and in view of the fact that the petitioner has
already appeared in the said test without raising any objection by
the respondent no.2, we direct the respondent no.1 to take
appropriate decision on the application of the petitioner for reappearing in the said test keeping in mind the principles laid down
by the Hon'ble Supreme Court in case of Vikash Kumar vs.
Union Public Services Commission & Others, (2021) 5 SCC
370 i.e. of reasonable accommodation by making adjustments to
enable disabled person to effectively counter the barriers posed
by disability person and sympathetically. Learned counsel for
the petitioner agrees to produce the certificate from one of
the agency prescribed in the said Information Bulletin at
Appendix VIII-B within one week from today. The
respondent no.1 shall consider the certificate obtained by
the petitioner from one of the agency prescribed Appendix
VIII-B within one week from the date of the petitioner
producing such certificate and shall communicate the
decision that would be taken by the respondent no.1 to the
petitioner within two days the date of taking a decision. It is
made clear that this order shall not be used as a precedent in any
other matter.
7. Place the petition on board for admission first on board on 28th
October, 2021. Parties to act on the authenticated copy of this
order."
(emphasis supplied)
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7. In furtherance of the interim order of the High Court, the
appellant stated that she approached the Grant Government Medical
College, Mumbai (the sixth respondent) on 12 October 2021, but was
informed that the certificate in the format prescribed under Appendix
VIII-A is applicable at the time of admission when a PwD candidate is
claiming reservation and not for claiming relaxation and benefits during
the examination. For further clarification, the appellant approached the
Directorate of Medical Education and Research (the fifth respondent).
The fifth respondent reiterated that the certificate under Appendix
VIII-A cannot be issued before the declaration of results.
8. On 26 October 2021, an additional affidavit was filed by the
appellant placing relevant material to indicate that a certificate conforming
to Appendix VIII-A is issued only after the declaration of results and
was required only at the time of seeking admission. By the impugned
judgment dated 29 October 2021, a Division Bench of the High Court
dismissed the appellant's writ petition. While dismissing the petition, the
High Court has noted that the statement which was made on behalf of
the first respondent that the appellant's case would be considered if a
certificate is produced from one of the centres referred in Appendix
VIII-B was incorrect and was made by the counsel due to a
"miscommunication". Despite noting the appellant's contention that she
is not required to obtain any such certificate from the agency prescribed
in Appendix VIII-B, the High Court declined to entertain the petition for
the following reasons:
"7. It is not in dispute that the certificate produced by the petitioner
from Sion Hospital was not from one of the designated agency
prescribed in Appendix-Vlll-B. lt is also not in dispute that even
pursuant to the opportunity granted by this Court on 11th October,
2021 to the petitioner to produce the certificate in terms of the
statement made by the learned counsel for the petitioner, the
petitioner has not produced the certificate from the said agency
prescribed in Appendix Vlll-8 even at this stage.
8. We are therefore not inclined to grant prayer clause (a) thereby
allowing the petitioner to appear for the NEET Entrance Test by
providing her with the compensatory time, and all other relaxations/
benefits that she is claiming to be entitled to by virtue of her person
with the purported disability status....."
AVNI PRAKASH v. NATIONAL TESTING AGENCY (NTA)
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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9. Nonetheless, the Division Bench observed that if the appellant
submits a representation to the first respondent, that would be duly
considered within four weeks. The High Court has also adverted to an
ad-interim order dated 28 October 2021 of this Court in a Special Leave
Petition under Article 136 of the Constitution instituted by the first
respondent (National Testing Agency v. Vaishnavi Vijay Bhopale7).
This Court has stayed an interim order of the High Court directing a
fresh examination in that case. Relying on the interim order of this Court
dated 28 October 2021, the High Court vacated its interim order and
dismissed the writ petition filed by the appellant.
10. We have heard Mr Rushabh Vidyarthi, learned counsel
appearing for the appellant and Mr Rupesh Kumar, learned counsel for
the first respondent, who has appeared on caveat. Since the dispute
essentially concerns the appellant and the first respondent, notice to the
other respondents is dispensed with.
B
Applicable laws and guidelines
B.1
Guidelines for Written Examination
11. On 29 August 2018, the Ministry of Social Justice and
Empowerment (Department of Empowerment of Persons with
Disabilities) issued guidelines for conducting a written examination for
PwBD. The Guidelines for Written Examinations underscore the need
for a comprehensive policy. In this regard, Paragraph 1, Clause II
stipulates:
"II. There should be a uniform and comprehensive policy across
the country for persons with benchmark disabilities for written
examination taking into account improvement in technology and
new avenues opened to the persons with benchmark disabilities
providing a level playing field. Policy should also have flexibility to
accommodate the specific needs of case-to-case basis."
Paragraph 1, Clause III provides that there is no need to stipulate
separate criteria for regular and competitive examinations. The remaining
guidelines prescribe several facilities by way of reasonable
accommodation. Broadly, they provide for the following entitlements:
7 Special Leave Petition (C) 17027 of 2021
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(i)
The facility of Scribe/Reader/Lab Assistant to a PwBD
who has limitation in writing including that of speed, at their
option;
(ii)
An option of choosing the mode for taking the examinations
such as Braille, computer, or large print; and
(iii)
Compensatory time for appearing in the examination.
12. Paragraph 1, Clause XII of the Guidelines for Written
Examinations provides for compensatory time in the following terms:
"The word "extra time or additional time" that is being currently
used should be changed to "compensatory time" and the same
should not be less than 20 minutes per hour of examination for
persons who are allowed use of scribe/reader/lab assistant. All
the candidates with benchmark disability not availing the facility
of scribe may be allowed additional time of minimum of one hour
for examination of 3 hours duration. In case the duration of the
examination is less than an hour, then the duration of additional
time should be allowed on pro-rata basis. Additional time should
not be less than 5 minutes and should be in the multiple of 5."
Paragraph 2 of the notification issuing the guidelines stipulates
that they should be "scrupulously followed". All recruitment agencies,
academic/examination bodies etc. under the administrative control of
each ministry or department were to be advised to ensure compliance.
B.2 NEET Bulletin 2021
13. Chapter V of the NEET Bulletin 2021, issued by the first
respondent, deals with "Counselling And Reservation For Admission To
MBBS And BDS Courses". In compliance with the Ministry of Social
Justice and Empowerment's Guidelines for Written Examination, Clause
5.4 deals with the facilities to be provided to PwBD candidates while
appearing in the examination. Clause 5.4 is extracted below:
"5.4 Facilities for PwBD candidates to appear in the exam
As per the Guidelines issued by the Department of Empowerment
of Persons with Disabilities (Divyangian) under the Ministry of
Social Justice & Empowerment from time to time on the subject
"Written Examination for Persons with Benchmark
Disabilities", a candidate with one of the benchmark disabilities
AVNI PRAKASH v. NATIONAL TESTING AGENCY (NTA)
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(as defined in Section 2(r) of RPwBD Act, 2016) holding a
Disability Certificate in the format prescribed in Appendix-VIIIA is entitled to the following facilities:
a. The facility of Scribe, in case he/she has a physical limitation
and a scribe is essential to write the Examination on his/her
behalf, being so certified by a CMO/Civil Surgeon/Medical
Superintendent of a Govt. Health Care Institution in the format
given at Appendix-VIII-C. However, as a measure of caution
and due to the prevailing circumstances of COVID-19
Pandemic, such candidate is required to bring his/her own
Scribe alongwith a Letter of Undertaking given at AppendixVIII-D, for using own scribe in the format.
b. Compensatory time of one hour for the Examination of three
hours duration, whether such candidate uses the facility of Scribe
or not.
[........]
Note:
1. The minimum degree of disability should be 40% (Benchmark
Disability) in order to be eligible for availing reservation for
persons with specified disability (For details refer to AppendixVIII).
2.