# VIKASH KUMAR v. UNION PUBLIC SERVICE COMMISSION & ORS

- **Citation:** [2021] 12 S.C.R. 311
- **Court:** Supreme Court of India
- **Decided:** 2021-02-11
- **Case number:** Civil Appeal No. 273 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indira Banerjee, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vikash-kumar-v-union-public-service-commission-ors-35165
- **Pages:** 54

## Headnote

Rights of Persons with Disabilities Act, 2016 - ss. 2(r), 2(s),
2(y), 3 and 56 - Civil Services Examination Rules, 2018 - Facility
of a scribe in the Civil Services Examination - Entitlement to - The
appellant has a disability in the form of dysgraphia, commonly known
as a Writer's Cramp - On 07.02.2018, UPSC issued a notification
for the CSE 2018 - The CSE Rules 2018 issued by DoPT providing
for the manner and conduct of the examination - The general
instructions provided that all candidates must write their papers in
their own hand and will not be allowed the help of a scribe -
Exceptions to this rule were provided for blind candidates;
candidates with locomotor disability and cerebral palsy where the
"dominant (writing) is affected to the extent of slowing the
performance of function (minimum of 40% impairment)" -
Candidates within the exception were allowed the help of a scribe -
Appellant in his online application for the CSE 2018 declared himself
to be a person with a benchmark disability of 40% or more and
requested the UPSC to provide him with a scribe for the examination
- Application was rejected by the UPSC - Aggrieved, appellant
moved to the Tribunal - Tribunal dismissed the application and it
was held that appellant did not fulfill the criteria - Appellant filed
writ petition - The High Court declined to interfere with the order
of the Tribunal on the ground that the appellant had not qualified
at the Preliminary Examination for CSE 2018 and thus, the relief
seeking an amendment of the CSE Rules 2018 to provide scribes to
candidates with specific disabilities was rendered otiose - The
Supreme Court directed AIIMS to constitute a medical board to
evaluate the condition of the appellant - AIIMS, by its report opined
that the appellant suffers from a "chronic neurological condition"
termed as bilateral Writer's Cramp - However, the report opines
that while he does not suffer from a "benchmark disability", the
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appellant is a 'person with disability' under the RPwD Act, 2016 -
The extent of the disability is assessed at 6% - Held: The guidelines
of the Ministry of Social Justice and Empowerment dated 29.08.2018
recognise the entitlement to a scribe only for candidates with
benchmark disabilities - The guidelines which have been framed
on 29.08.2018 can by no means be regarded as being exhaustive
of the situations in which a scribe can be availed of by persons
other than those who suffer from benchmark disabilities - The rights
which emanate from provisions such as s.3 extend to persons with
disability as broadly defined by s. 2(s) - To confine the facility of a
scribe only to those who have benchmark disabilities would be to
deprive a class of persons of their statutorily recognized entitlements
- To do so would be contrary to the plain terms as well as the object
of the statute - In the instant case, the condition of appellant was
repeatedly affirmed by several medical authorities including
NIMHANS and AIIMS - The appellant has a specified disability
inasmuch as he has a chronic neurological condition - This condition
Forms part of Entry IV of the Schedule to the RPwD Act 2016 - The
writer's cramp has been found successively to be a condition which
the appellant has, making it difficult for him to write a conventional
examination - To deny the facility of a scribe in a situation such as
the present would negate the valuable rights and entitlements which
are recognised by the RPwD Act 2016 - Appellant entitled to the
facility of a scribe - Thus, the impugned order and judgment of the
High Court is set aside.
Rights of Persons with Disabilities Act, 2016 - ss. 2(r), 2(s),
2(y), 3 and 56 - Benchmark disability not a precondition to obtain
a scribe - Held: The whole concept of a benchmark disability within
the meaning of s. 2(r) is primarily in the context of special provisions
including reservation that are embodied in Chapter VI of the RPwD
Act 2016 - Conceivab

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 [2021] 12 S.C.R. 311
311
VIKASH KUMAR
v.
UNION PUBLIC SERVICE COMMISSION & ORS.
(Civil Appeal No. 273 of 2021)
FEBRUARY 11, 2021
[DR. DHANANJAYA Y CHANDRACHUD,
INDIRA BANERJEE AND SANJIV KHANNA, JJ.]
Rights of Persons with Disabilities Act, 2016 - ss. 2(r), 2(s),
2(y), 3 and 56 - Civil Services Examination Rules, 2018 - Facility
of a scribe in the Civil Services Examination - Entitlement to - The
appellant has a disability in the form of dysgraphia, commonly known
as a Writer's Cramp - On 07.02.2018, UPSC issued a notification
for the CSE 2018 - The CSE Rules 2018 issued by DoPT providing
for the manner and conduct of the examination - The general
instructions provided that all candidates must write their papers in
their own hand and will not be allowed the help of a scribe -
Exceptions to this rule were provided for blind candidates;
candidates with locomotor disability and cerebral palsy where the
"dominant (writing) is affected to the extent of slowing the
performance of function (minimum of 40% impairment)" -
Candidates within the exception were allowed the help of a scribe -
Appellant in his online application for the CSE 2018 declared himself
to be a person with a benchmark disability of 40% or more and
requested the UPSC to provide him with a scribe for the examination
- Application was rejected by the UPSC - Aggrieved, appellant
moved to the Tribunal - Tribunal dismissed the application and it
was held that appellant did not fulfill the criteria - Appellant filed
writ petition - The High Court declined to interfere with the order
of the Tribunal on the ground that the appellant had not qualified
at the Preliminary Examination for CSE 2018 and thus, the relief
seeking an amendment of the CSE Rules 2018 to provide scribes to
candidates with specific disabilities was rendered otiose - The
Supreme Court directed AIIMS to constitute a medical board to
evaluate the condition of the appellant - AIIMS, by its report opined
that the appellant suffers from a "chronic neurological condition"
termed as bilateral Writer's Cramp - However, the report opines
that while he does not suffer from a "benchmark disability", the
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appellant is a 'person with disability' under the RPwD Act, 2016 -
The extent of the disability is assessed at 6% - Held: The guidelines
of the Ministry of Social Justice and Empowerment dated 29.08.2018
recognise the entitlement to a scribe only for candidates with
benchmark disabilities - The guidelines which have been framed
on 29.08.2018 can by no means be regarded as being exhaustive
of the situations in which a scribe can be availed of by persons
other than those who suffer from benchmark disabilities - The rights
which emanate from provisions such as s.3 extend to persons with
disability as broadly defined by s. 2(s) - To confine the facility of a
scribe only to those who have benchmark disabilities would be to
deprive a class of persons of their statutorily recognized entitlements
- To do so would be contrary to the plain terms as well as the object
of the statute - In the instant case, the condition of appellant was
repeatedly affirmed by several medical authorities including
NIMHANS and AIIMS - The appellant has a specified disability
inasmuch as he has a chronic neurological condition - This condition
Forms part of Entry IV of the Schedule to the RPwD Act 2016 - The
writer's cramp has been found successively to be a condition which
the appellant has, making it difficult for him to write a conventional
examination - To deny the facility of a scribe in a situation such as
the present would negate the valuable rights and entitlements which
are recognised by the RPwD Act 2016 - Appellant entitled to the
facility of a scribe - Thus, the impugned order and judgment of the
High Court is set aside.
Rights of Persons with Disabilities Act, 2016 - ss. 2(r), 2(s),
2(y), 3 and 56 - Benchmark disability not a precondition to obtain
a scribe - Held: The whole concept of a benchmark disability within
the meaning of s. 2(r) is primarily in the context of special provisions
including reservation that are embodied in Chapter VI of the RPwD
Act 2016 - Conceivably, the Parliament while mandating the
reservation of posts in government establishments and of seats in
institutions of higher learning was of the view that this entitlement
should be recognized for persons with benchmark disabilities - As
a matter of legislative policy, these provisions in Chapter VI have
been made applicable to those with benchmark disabilities where a
higher threshold of disability is stipulated - Conflating the rights
and entitlements which inhere in persons with disabilities with the
notion of benchmark disabilities does dis-service to the salutary
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VIKASH KUMAR v. UNION PUBLIC SERVICE COMMISSION
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purpose underlying the enactment of the RPwD Act 2016 - To deny
the rights and entitlements recognized for persons with disabilities
on the ground that they do not fulfill a benchmark disability would
be plainly ultra vires the RPwD Act 2016.
Constitution of India - Arts.14, 19 and 21 - Rights of Persons
with Disabilities Act, 2016 - Held: The golden triangle of Arts. 14,
19 and 21 applies with full force and vigour to the disabled - S.3 is
a statutory recognition of the constitutional rights embodied in Arts.
14, 19 and 21 among other provisions of Part III of the Constitution
- S. 3 casts an affirmative obligation on the government to ensure
that persons with disabilities enjoy (i) the right to equality; (ii) a
life with dignity; and (iii) respect for their integrity equally with
others.
Principles/Doctrines - Principle of reasonable accomodation
- Rights of Persons with Disabilities - Held: The principle of
reasonable accommodation captures the positive obligation of the
State and private parties to provide additional support to persons
with disabilities to facilitate their full and effective participation in
society - The concept of reasonable accommodation in s. 2(y) of
the Rights of Persons with Disabilities Act, 2016 incorporates making
"necessary and appropriate modification and adjustments" so long
as they do not impose a disproportionate or undue burden in a
particular case to ensure to persons with disability the enjoyment
or exercise of rights equally with others" - Equality, nondiscrimination and dignity are the essence of the protective ambit
of the RPwD Act 2016.
Rights of Persons with Disabilities Act, 2016 - Formulation
of new policy concerning access to scribes for persons with
disabilities - Held: Direction issued to the Union Government in
the Ministry of Social Justice and Empowerment to ensure the
framing of proper guidelines which would regulate and facilitate
the grant of a facility of a scribe to persons with disability within
the meaning of s. 2(s) where the nature of the disability operates to
impose a barrier to the candidate writing an examination - It was
also directed to consult persons with disabilities and involve them
in the decision making process.
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Allowing the appeal, the Court
HELD: 1. The legal framework
1.1 The important point to note is that the guidelines of the
Ministry of Social Justice and Empowerment (MSJE) dated 29
August 2018 recognise the entitlement to a scribe only for
candidates with benchmark disabilities. Among them, candidates
belonging to three categories - the blind and those with locomotor
disability or cerebral palsy - are to be given the facility if so
desired. In the case of candidates with other benchmark
disabilities, such a facility is to be extended upon a certificate.
[Para 20][336-D-E]
2. Two Government Ministries: A policy disconnect
2.1 Referring to the OM dated 29 August 2018 issued by
the MSJE, the affidavit of UPSC states that these guidelines
confine the benefit of a scribe only to persons with benchmark
disabilities. The request of the appellant is stated to have been
rejected on the ground that there is an absence of any provision
for a scribe to candidates falling in the category in which the
appellant is placed. UPSC in fact states that it does not permit a
deviation from the CSE Rules 2018. [Para 22][337-H; 338-A]
2.2 MSJE is the nodal ministry which is entrusted with
implementing the provisions of the Rights of Persons with
Disability Act, 2016. As the nodal ministry, it has formulated
guidelines on 29 August 2018. These guidelines, as noticed,
confine access to a scribe, reader or lab assistant to candidates
having benchmark disabilities within the meaning of Section 2(r).
Yet, as the nodal ministry, it recognizes that these guidelines are
not exhaustive of the circumstances or conditions in which a scribe
can be provided. On the contrary, the MSJE has recognized the
prevalence of other medical conditions "not identified as
disabilities per se" but which may hamper the writing capability
of a person. It specifically leaves it open to every examining body
to consider such cases for the grant of scribe, extra time or other
facilities in consultation with the Ministry of Health and Family
Welfare against the production of a medical certificate, in line
with those prescribed for candidates with benchmark disabilities.
[Para 23][338-E-G]
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2.3 This view of the nodal ministry has evidently not
percolated to UPSC which, on the other hand, considers itself to
be strictly bound, without deviation, from the rules specified by
DoPT for the conduct of the CSE. Notwithstanding the views of
the MSJE, the UPSC does not recognize that the guidelines dated
29 August 2018 vest it with the discretion to provide
accommodations on a case-by-case basis, beyond those spelt out
in the guidelines. The rules which hold the field are in terms of
the guidelines dated 29 August 2018. UPSC has therefore
specifically stated before this Court that a candidate who does
not fulfill the description of a person with benchmark disabilities
would not be entitled to a scribe. These divergent views of two
Central Ministries before the Court are symptomatic of a policy
disconnect. [Para 24][339-A-C]
3. Benchmark disability not a precondition to obtaining a
scribe
3.1 The RPwD Act, 2016 embodies two distinct concepts
when it speaks of (i) 'persons with benchmark disabilities' and
(ii) persons with disability. In defining a person with benchmark
disability, Section 2(r) encompasses two categories: (i) a person
with not less than 40 per cent of a specified disability, where the
specified disability has not been defined in measurable terms and
(ii) a person with disability where the specified disability has been
defined in measurable terms, as certified by the certifying
authority. In other words, Section 2(r) encompasses both a
situation where a specified disability has not been defined in
measurable terms, in which event it means a person with not
less than 40 per cent of the specified disability but also where a
specified disability has been defined in measurable terms. A
certification by the certifying authority is contemplated in regard
to whether the person concerned does in fact meet the specified
norm as quantified. [Para 25][339-D-F]
3.2 The second concept which is embodied in Section 2(s)
is that of a person with disability. Section 2(s) unlike Section 2(r)
is not tagged either with the notion of a specified disability or a
benchmark disability as defined in Section 2(r). Section 2(s) has
been phrased by Parliament in broad terms so as to mean a person
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with a long term physical, mental, intellectual or sensory
impairment which in interaction with various barriers hinders full
and effective participation in society equally with others.
[Para 26][339-G-H]
3.3 The concept of a benchmark disability under Section
2(r) cannot be conflated with the notion of disability under Section
2(s). The definition in Section 2(r) applies in the case of a specified
disability. The expression 'specified disability' is defined in
Section 2(zc) to mean the disabilities as specified in the Schedule.
[Para 29][340-E]
3.4 Conflating the rights and entitlements which inhere in
persons with disabilities with the notion of benchmark disabilities
does dis-service to the salutary purpose underlying the enactment
of the RPwD Act 2016. Worse still, to deny the rights and
entitlements recognized for persons with disabilities on the
ground that they do not fulfill a benchmark disability would be
plainly ultra vires the RPwD Act 2016. [Para 31][341-G-H]
4. Rights of Persons with Disabilities Act 2016: A paradigmshift
4.1 The fundamental postulate upon which the RPwD Act
2016 is based is the principle of equality and non-discrimination.
Section 3 casts an affirmative obligation on the government to
ensure that persons with disabilities enjoy (i) the right to equality;
(ii) a life with dignity; and (iii) respect for their integrity equally
with others. Section 3 is an affirmative declaration of the intent of
the legislature that the fundamental postulate of equality and nondiscrimination is made available to persons with disabilities
without constraining it with the notion of a benchmark disability.
Section 3 is a statutory recognition of the constitutional rights
embodied in Articles 14, 19 and 21 among other provisions of
Part III of the Constitution. By recognizing a statutory right and
entitlement on the part of persons who are disabled, Section 3
seeks to implement and facilitate the fulfillment of the
constitutional rights of persons with disabilities. [Para 33]
[342-C-E]
4.2 The principle of reasonable accommodation captures
the positive obligation of the State and private parties to provide
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additional support to persons with disabilities to facilitate their
full and effective participation in society. [Para 35][343-D-E]
4.3 The general principle of reasonable accommodation did
not find a place in the 1995 Act. The principle of reasonable
accommodation has found a more expansive manifestation in the
RPwD Act 2016. Section 3 of the RPwD Act 2016 goes beyond a
formal guarantee of non-discrimination by casting affirmative
duties and obligations on government to protect the rights
recognized in Section 3 by taking steps to utilize the capacity of
persons with disabilities "by providing appropriate environment".
Among the obligations which are cast on the government is the
duty to take necessary steps to ensure reasonable accommodation
for persons with disabilities. The concept of reasonable
accommodation in Section 2(y) incorporates making "necessary
and appropriate modification and adjustments" so long as they
do not impose a disproportionate or undue burden in a particular
case to ensure to persons with disability the enjoyment or
exercise of rights equally with others." Equality, nondiscrimination and dignity are the essence of the protective ambit
of the RPwD Act 2016. [Para 37][345-E-H; 346-A-B]
4.4 When the government in recognition of its affirmative
duties and obligations under the RPwD Act 2016 makes
provisions for facilitating a scribe during the course of the Civil
Services Examination, it cannot be construed to confer a largesse.
Nor does it by allowing a scribe confer a privilege on a candidate.
The provision for the facility of a scribe is in pursuance of the
statutory mandate to ensure that persons with disabilities are
able to live a life of equality and dignity based on respect in society
for their bodily and mental integrity. There is a fundamental fallacy
on the part of the UPSE/DoPT in proceeding on the basis that
the facility of a scribe shall be made available only to persons
with benchmark disabilities. This is occasioned by the failure of
the MSJE to clarify their guidelines. The whole concept of a
benchmark disability within the meaning of Section 2(r) is
primarily in the context of special provisions including reservation
that are embodied in Chapter VI of the RPwD Act 2016.
Conceivably, the Parliament while mandating the reservation of
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posts in government establishments and of seats in institutions
of higher learning was of the view that this entitlement should be
recognized for persons with benchmark disabilities. As a matter
of legislative policy, these provisions in Chapter VI have been
made applicable to those with benchmark disabilities where a
higher threshold of disability is stipulated. Except in the specific
statutory context where the norm of benchmark disability has
been applied, it would be plainly contrary to both the text and
intent of the enactment to deny the rights and entitlements which
are recognized as inhering in persons with disabilities on the
ground that they do not meet the threshold for a benchmark
disability. A statutory concept which has been applied by
Parliament in specific situations cannot be extended to others
where the broader expression, persons with disability, is used
statutorily. The guidelines which have been framed on 29 August
2018 can by no means be regarded as being exhaustive of the
situations in which a scribe can be availed of by persons other
than those who suffer from benchmark disabilities. The MSJE
does not in its counter affidavit before this Court treat those
guidelines as exhaustive of the circumstances in which a scribe
can be provided for persons other than those having benchmark
disabilities. This understanding of the MSJE is correct for the
simple reason that the rights which emanate from provisions such
as Section 3 extend to persons with disability as broadly defined
by Section 2(s). [Para 41][348-E-H; 349-A-D]
4.5 This Court is, therefore, of the view that DoPT and
UPSC have fundamentally erred in the construction which has
been placed on the provisions of the RPwD Act 2016. To confine
the facility of a scribe only to those who have benchmark
disabilities would be to deprive a class of persons of their
statutorily recognized entitlements. To do so would be contrary
to the plain terms as well as the object of the statute.
[Para 42][349-D-E]
5. Reasonable accommodation
5.1 In the specific context of disability, the principle of
reasonable accommodation postulates that the conditions which
exclude the disabled from full and effective participation as equal
members of society have to give way to an accommodative society
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which accepts difference, respects their needs and facilitates the
creation of an environment in which the societal barriers to
disability are progressively answered. Accommodation implies a
positive obligation to create conditions conducive to the growth
and fulfilment of the disabled in every aspect of their existence -
whether as students, members of the workplace, participants in
governance or, on a personal plane, in realizing the fulfilling
privacies of family life. The accommodation which the law
mandates is 'reasonable' because it has to be tailored to the
requirements of each condition of disability. The expectations
which every disabled person has are unique to the nature of the
disability and the character of the impediments which are
encountered as its consequence. [Para 46][350-G; 351-A-B]
6. Case of the appellant
6.1 Insofar as the case of the appellant is concerned, his
condition has been repeatedly affirmed by several medical
authorities including National Institute of Mental Health and
Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS
report which was pursuant to the order of this Court is clear in
opining that the appellant has a specified disability inasmuch as
he has a chronic neurological condition. This condition Forms
part of Entry IV of the Schedule to the RPwD Act 2016. The
writer's cramp has been found successively to be a condition which
the appellant has, making it difficult for him to write a conventional
examination. To deny the facility of a scribe in a situation such as
the present would negate the valuable rights and entitlements
which are recognised by the RPwD Act 2016. [Para 73][361-E-F]
6.2 This Court, therefore, hold and declare that the appellant
would be entitled to the facility of a scribe for appearing at the
Civil Services Examination and any other competitive selection
conducted under the authority of the government. [Para 74]
[361-G]
7. Formulation of new policy concerning access to scribes
for persons with disabilities
7.1 A broader direction issued to the Union Government in
the Ministry of Social Justice and Empowerment to ensure the
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framing of proper guidelines which would regulate and facilitate
the grant of a facility of a scribe to persons with disability within
the meaning of Section 2(s) where the nature of the disability
operates to impose a barrier to the candidate writing an
examination. In formulating the procedures, the Ministry of Social
Justice and Empowerment may lay down appropriate norms to
ensure that the condition of the candidate is duly certified by
such competent medical authority as may be prescribed so as to
ensure that only genuine candidates in need of the facility are
able to avail of it. [Para 75][361-H; 362-A-C]
Jeeja Ghosh v. Union of India (2016) 7 SCC 761 :
[2016] 4 SCR 638; Justice Sunanda Bhandare
Foundation v. Union of India (2018) 2 SCC 397; Union
of India v. National Federation of the Blind (2013) 10
SCC 772 : [2013] 9 SCR 1023; Syed Bashir-ud-din
Qadri v. Nazir Ahmed Shah (2010) 3 SCC 603 : [2010]
3 SCR 250 - relied on.
V Surendra Mohan v. State of Tamil Nadu ("Mohan")
(2019) 4 SCC 237: [2019] 1 SCR 954 - referred to.
Case law Reference
[2016] 4 SCR 638
relied on
Para 34
(2018) 2 SCC 397
relied on
Para 35
[2013] 9 SCR 1023
relied on
Para 38
[2010] 3 SCR 250
relied on
Para 50
[2019] 1 SCR 954
referred to
Para 51
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 273 of
2021.
From the Judgment and Order dated 25.09.2019 of the High Court
of Delhi at New Delhi in Writ Petition No. 9942 of 2018.
Ms. Madhavi Divan, ASG, Rajan Mani, Ms. Ritu Kumar,
Pukhrambam Ramesh Kumar, Ms. Anupama Ng., Karun Sharma, Gopal
Jha, A.K. Kaul, Ms. Aakanksha Kaul, Ms. Nidhi Khanna, Raj Bahadur
Yadav, Amrish Kumar, Naresh Kaushik, Mrs. Lalitha Kaushik, Ms.
Sanchita Ain, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A.
Factual background
B.
The course run: The Tribunal and High Court of Delhi
C.
These proceedings
C.1 Arguments of the appellant
C.2 Arguments of the UPSC
C.3. Arguments of the Union of India
D.
The legal framework
E.
Two Government Ministries: A policy disconnect
F.
Benchmark disability not a precondition to obtaining a
scribe
G.
Rights of Persons with Disabilities Act 2016: A paradigmshift
G.1A statutory manifestation of a constitutional commitment
G.2Scheme of the 2016 Act
H.
Reasonable accommodation
I.
The argument of misuse
J.
The language of our discourse
K.
Realizing the transformative potential of the Rights of
Persons with Disabilities Act, 2016: From principle to
practice
L.
Case of the appellant
M.
Formulation of new policy concerning access to scribes
for persons with disabilities
N.
In summation
A. Factual background
1. A citizen who suffers from a writer's cramp has travelled to
this Court. The grievance is that he was denied a scribe in the civil
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services' examination1. The case has run its course through the judicial
system as an individual grievance. But its contours present portents of
the aspirations of a whole class of persons whose daily engagement
with physical disability defines their continuing quest for dignity. Through
a maze of statutes, rules, and regulations, the case raises core issues
about the actual realization of equal opportunity and access to the disabled.
It tests what the law professes with how its ideals are realized. The
language of our discourse, as much as its outcome, should generate
introspection over the path which our society has traversed and the road
that lies ahead in realizing the rights of the disabled. Voices such as
those of the appellant are a constant reminder of the chasm between the
law and reality. But they also provide a platform for change and evolution
towards a better future.
2. Down to its bare bones, this appeal turns upon the interface of
the Civil Services Examination Rules 20182 dated 7 February 2018 with
the Rights of Persons with Disabilities Act, 20163.
3. The appellant has a disability in the form of dysgraphia,
commonly known as a Writer's Cramp. In August 2016, he graduated
with an MBBS degree from the Jawaharlal Nehru Institute of Post
Graduate Medical Instruction and Research, popularly known by the
acronym JIPMER. Intending to pursue a career in the civil services, he
appeared in 2017 for the CSE. A scribe was provided to him by the
Union Public Services Commission4 to enable him to appear in the written
test. In the online application form for CSE 2017, the appellant declared
himself to be a person with locomotor disability to avail the services of a
scribe. On 7 February 2018, UPSC issued a notification for the CSE
20185. The Department of Personnel and Training6 issued the CSE Rules
2018 providing for the manner and conduct of the examination. The
general instructions provided that all candidates must write their papers
in their own hand and will not be allowed the help of a scribe. Exceptions
to this rule were provided for blind candidates; candidates with locomotor
disability and cerebral palsy where the "dominant (writing) is affected to
the extent of slowing the performance of function (minimum of 40%
1 "CSE"
2 "CSE Rules 2018"
3 "RPwD Act, 2016"
4 "UPSC"
5 "CSE Notification 2018"
6 "DoPT"
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impairment)". Candidates within the exception were allowed the help of
a scribe. An additional 'compensatory time' of twenty minutes per hour
was also to be granted to such candidates.
4. In his online application for the CSE 2018, the appellant declared
himself to be a person with a benchmark disability of 40% or more. By
his email dated 28 February 2018, the appellant requested the UPSC to
provide him with a scribe for the examination. UPSC, by its letter dated
15 March 2018, rejected the request on the ground that a scribe could be
provided only to blind candidates and candidates with locomotor disability
or cerebral palsy with an impairment of at least 40% and the appellant
did not meet this criterion.
5. The appellant also sought to appear for selection to the post of
Medical Officer pursuant to the Combined Medical Services Examination
2017 conducted under the auspices of UPSC. In order to obtain a disability
certificate, he approached the Medical Board of Ram Manohar Lohia
Hospital, Delhi. By a communication dated 12 February 2018, the disability
certificate was denied to him. This led the appellant to preface a challenge
before the Central Administrative Tribunal7 where the case is still pending
adjudication.
B. The course run: The Tribunal and High Court of Delhi
6. Aggrieved by the denial of the services of a scribe for the CSE
2018, the appellant moved the Tribunal. By an interim order dated 30
May 2018, the Tribunal directed the UPSC to provide him a scribe to
enable him to appear for the preliminary examination. The results were
published on 14 July 2018, but the appellant's result was withheld. By a
judgment dated 7 August 2018, the Tribunal dismissed the application
filed by the appellant on the ground that, since Ram Manohar Lohia
Hospital had refused to issue a disability certificate, the appellant could
not claim access to a scribe as a disabled candidate. The Tribunal also
noted that the appellant did not claim the facility of a scribe in the CSE
2017 or during his MBBS graduation examinations. The Tribunal held
that though in para 5 of the CSE Notification 2018, the UPSC recognized
the right to a scribe, it has been limited to blind candidates and candidates
having locomotor disability and cerebral palsy, where a minimum 40%
impairment exists. The appellant was held not to fulfill the criteria. The
Tribunal also rejected a certificate dated 22 March 2015 issued by the
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National Institute of Mental Health and Neuro Sciences, on the ground
that it failed to mention the extent of the disability. Finally, the Tribunal
questioned the maintainability of the prayer of the appellant for a direction
to the UPSC to amend the CSE Notification 2018. Since the relief was
in the realm of advising the executive on policy matters, the Tribunal
refrained from interfering in the matter.
7. The appellant instituted a writ petition before the High Court of
Delhi and challenged the legality of the CSE Rules 2018. Meanwhile, he
obtained a medical certificate dated 27 August 2018 from National Institute
of Mental Health and Neuro Sciences (NIMHANS), Bangalore,
declaring that he has a Writer's Cramp and would require a scribe during
his examinations.
8. A Division Bench of the High Court of Delhi by an order dated
25 September 2018 declined to interfere with the order of the Tribunal
on the ground that the appellant had not qualified at the Preliminary
Examination for CSE 2018 and thus, the relief seeking an amendment of
the CSE Rules 2018 to provide scribes to candidates with specific
disabilities was rendered otiose. The appellant was granted liberty to file
another application before the Tribunal in the future. This order of the
High Court of Delhi has been challenged in appeal.
C. These proceedings
9. During the course of the proceedings, by an order dated 16
January 2020, we directed the All India Institute of Medical Sciences8 to
constitute a medical board to evaluate the condition of the appellant and
render its opinion on (i) whether he suffers from a benchmark disability
within the meaning of Section 2(r) and Section 2(zc) of the RPwD Act,
2016; and (ii) whether he is a 'person with disability' under Section 2(s)
of the RPwD Act, 2016 and the extent of the disability. AIIMS, by its
report dated 10 February 2020, opined that the appellant suffers from a
"chronic neurological condition" termed as bilateral Writer's Cramp.
However, the report opines that while he does not suffer from a
"benchmark disability", the appellant is a 'person with disability' under
the RPwD Act, 2016. The extent of the disability is assessed at 6%.
C.1 Arguments of the appellant
10. Mr Rajan Mani, learned counsel appearing on behalf of the
appellant, has made the following submissions:
8 "AIIMS"
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i
The appellant has been issued medical certificates dated
21 March 2015 and 27 August 2018, which certify that he
has a Writer's Cramp and would require a scribe. According
to Section 2(s) of the RPwD Act, 2016, a person with
disability means a person with long-term, physical, mental,
intellectual and sensory impairment, which hinders their full
and effective participation in society. These certificates
prove that the appellant falls under Section 2(s) of the Act
and is entitled to the protection of the Act;
ii
Writer's Cramp, or dysgraphia, is a specific disability and is
listed in entry 2(a) of the Schedule to the RPwD Act, 2016.
The Ministry of Social Justice and Empowerment9, by a
notification dated 14 January 2018, has also recognized the
specific learning disability of dysgraphia;
iii
The CSE Rules 2018 and the CSE Notification 2018 are in
violation of Section 20 of the RPwD Act, 2016. Under
Section 20, every government establishment is required to
provide "reasonable accommodation" and a conducive
environment to employees with disability. "Reasonable
accommodation" as defined in Section 2(y) means
necessary and appropriate modifications and adjustments
to ensure that persons with disabilities enjoy their rights
equally with others. The provision of scribes and
compensatory time during the examination to candidates
such as the appellant are reasonable accommodations
necessary to be provided under the RPwD Act, 2016;
iv
The CSE Rules 2018 and the CSE Notification 2018 violate
Article 14 and Article 16(1) of the Constitution and the
RPwD Act, 2016 as they provide for scribes only for
candidates who are blind, those suffering from locomotor
disability or cerebral palsy. In the CSE Rules 2018,
applications are invited from all persons with disabilities and
age relaxation is also provided to them, including for those
suffering from learning disabilities. However, the provision
of scribes is limited to a few candidates;
v
The CSE Rules 2018 fail to recognize that persons such as
the appellant with a Writer's Cramp have difficulty in writing
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in their own hand and thus, should be granted a similar
facility of a scribe;
vi
Other institutions in India, such as the Institute of Chartered
Accountants of India and the University of Delhi, recognize
Writer's Cramp as a disability for which candidates have
been provided with scribes;
vii
The medical certificates dated 21 March 2015 and 27 August
2018 indicate that the appellant falls within the definition of
a "person with disability" under the Act. Thus, even without
a disability certificate, the appellant should be granted the
facility of a scribe;
viii
The RPwD Act, 2016 makes a distinction between "persons
with disability" and "persons with benchmark disability",
the latter being those who are certified by a disability
certificate to have not less than 40% of the specified
disabilities enumerated under the Schedule to the Act.
Persons with benchmark disability are eligible for special
provisions of reservation in employment and higher
education. However, Section 20 of the Act applies to all
persons with disabilities and is not limited to persons with
benchmark disability. Thus, even without the disability
certificate, the appellant would be entitled to measures of
reasonable accommodation such as the provision of a scribe
for professional examinations; and
ix
The extent of the disability of 6% as evaluated by the
medical board of AIIMS pertains to the extent of his
locomotor disability due to a chronic neurological condition
and the inability in moving himself or objects. The evaluation
does not pertain to the writing ability of the petitioner. Further,
the medical report corroborates the prior medical certificates
issued to the appellant and certifies that the appellant suffers
from Writer's Cramp which causes difficulty in writing.
C.2 Arguments of the UPSC
11. Mr Naresh Kaushik, learned Counsel appearing on behalf of
the UPSC, has submitted that :
i
The issue relating to the entitlement of the appellant for the
facility of a scribe for writing the CSE 2018 is governed by
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the rules framed by the DoPT. According to the CSE Rules
2018, persons with benchmark disabilities are provided with
the facility of a scribe, if desired. In case of persons with a
benchmark disability, the facility of a scribe is provided on
the production of a certificate issued by a Chief Medical
Officer of a Government Healthcare Institution to the effect
that person concerned has a physical limitation to write and
a scribe is essential to write the examination on the
candidate's behalf;
ii
The appellant had made an incorrect declaration in his
application for the CSE 2018 by declaring that he belongs
to the category of persons with benchmark disability without
possessing the prescribed medical certificate; and
iii
The appellant has failed to challenge the legality of the CSE
Rules 2018 and has only made claims under Section 20 of
the RPwD Act, 2016.
C.3. Arguments of the Union of India
12. Ms Madhavi Divan, learned Additional Solicitor General,
appearing for the Union of India, made the following submissions:
i
According to the MSJE, Writer's Cramp is not a disability,
but a person suffering from Writer's Cramp has difficulty
in writing. The MSJE had also issued comprehensive
guidelines dated 26 February 2013 on the conduct of written
examinations for persons with disabilities, which provide
that the facility of a scribe should only be allowed to a person
with a disability of 40% or more. These guidelines were
revised on 29 August 2018 which provide for the facility of
scribes in the category of candidates affected with blindness,
locomotor disability and cerebral palsy; and for other persons
with benchmark disability, a medical certificate has to be
produced certifying that there is a physical limitation to write
and a scribe is essential to write the examination on the
candidate's instructions;
ii
Writer's Cramp is not specifically included in the list of
specified disabilities in the Schedule of the RPwD Act, 2016.
Thus, the guidelines dated 29 August 2018 are not applicable
to persons suffering from Writer's Cramp. However, many
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such medical conditions which may hamper writing ability
have not been identified as disabilities. In these instances,
the examining body has to consider the cases of such
candidates and whether facilities of scribes and
compensatory time is to be granted;
iii
There is a whole swathe of facilities which are available to
persons with disabilities to ensure a more inclusive society
- seats on public transport, ramp facilities and toilets.
Specific measures are undertaken in educational institutions
to facilitate the participation of persons with disabilities. The
percentage of disability is not relevant in these contexts.
However, different considerations govern the provision of
facilities for persons with disabilities in competitive
examinations;
iv
As an extension of [iii] above, the CSE conducted by the
UPSC is an extremely competitive examination. While there
may be candidates below the benchmark disability threshold
deserving of the facility of scribes to level the playing field,
the abuse of this facility cannot be ruled out. In a competitive
examination of this nature, the purity of the examination
has to be preserved; and
v
As regards the case of the appellant, a fresh medical
examination should be conducted, to specifically determine
if his disability is such as to necessitate a scribe.
D. The legal framework
13. Broadly speaking, there are two sets of regulatory provisions
which hold the field. The first consists of the notifications issued by the
DoPT in the Ministry of Personnel, Public Grievances and Pensions.
14. On 7 February 2018, a notification was issued by the Ministry
prescribing the Rules for the Conduct of the CSE to be held by the
UPSC in 2018. The notification covers diverse aspects governing the
conduct of the examination. Among them is Section 1 of Appendix-I
which incorporates the 'plan of examination' and Section 2 which provides
for the 'scheme, subjects for the preliminary and main examination'.
This is followed by 'general instructions' for the conduct of the preliminary
and main examination for the civil services. Insofar as is material, the
general instructions contain the following stipulations:
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"General Instructions {Preliminary as well as Main
Examination) :
(i) Candidates must write the papers in their own hand. In no
circumstances will they be allowed the help of a scribe to write
the answers for them.