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Synopsis

The Supreme Court on February 3, 2025, said that the guidelines issued by the Union government pursuant to the directions of the court, have to be enforced, by extending the benefits for Person with Benchmark Disabilities (PwBD) candidates to all Persons with Disabilities (PwD) candidates in writing their examinations, without any hindrance.

A bench of Justices J B Pardiwala and R Mahadevan directed the Union government's Ministry of Social Justice and Empowerment to revisit the Office Memorandum of August 10, 2022, and remove the restrictions and grant relaxations in a reasonable manner.

"The law is settled that all the benefits given to PwBD candidates must also be extended to PwD candidates, and there can be no discrimination between the candidates in granting facilities such as scribes, compensatory time, etc, except for reservation, in writing the examinations," the bench said.

In its judgment on a writ petition filed by Gulshan Kumar, a PwD candidate, questioning the absence of facilities of a scribe, compensatory time, etc to persons like him, court directed the Centre to renotify the Office Memorandum within a period of two months.

Court found there had been instances where examination bodies refused to extend the benefits available to PwD candidates due to the absence of a clear-cut grievance redressal mechanism, which continued to cause inconvenience and injustice to several candidates, including the petitioner.

Further, the court noted that the petitioner demonstrated that there were certain defects and lacunas in the guidelines issued by the Union government as well as in the implementation of the court’s directions, resulting in different authorities following disparate procedures.

"This lack of uniformity causes confusion, discrimination, and undermines the efficiency and effectiveness of the examination process. Therefore, in our opinion, there is an urgent need for a uniform memorandum for examinations applicable to all PwD candidates, and it is the responsibility of (Union government) to ensure its proper and just compliance," the bench said.

By its order on December 15, 2022, the bench had clarified that the SBI should not insist on the requirement of a benchmark disability within the meaning of the Rights of Persons with Disabilities Act, 2016 for the facility of a scribe, having due regard to the judgment of the court in Vikas Kumar Vs Union Public Service Commission and Others (2021).

The bench pointed out, in Avni Prakash Vs National Testing Agency (NTA) & Others (2021), the court had emphatically clarified that benchmark disability is not a precondition to obtain a scribe or compensatory time in examinations.

"Despite the same, the respondents continue to remain oblivious to the actual legal position and ignorant towards their obligations," the bench said.

From the decisions, the bench said, the principle of reasonable accommodation is central to ensure equality for all the persons with disabilities; and denying the facility of scribe or compensatory time, constituts discrimination under the RPwD Act, 2016.

"This court also wishes to diminish the artificial distinction and bifurcation drawn between candidates with disabilities and those with benchmark disabilities (40% disabled or more) by extending various rights to candidates with disabilities that were earlier limited only to those with benchmark disabilities," the bench said.

Further, the court said, the examination bodies are stressed upon to implement accessibility measures, ensure that the examination centres are physically accessible and equipped to accommodate disabled candidates and ensure strict compliance of the RPwD Act, 2016 to prevent discrimination and provide equal opportunities for persons with disabilities.

Having referred to foreign decisions, the court noted, the rights of disabled persons are less instructive and more general and that, right to education, right to equality, and right against discrimination accorded to them will only be truly realised, when State structures form policies, laws, and rules to provide equal access and reasonable accommodation to such persons.

In the office memorandum, based on the recommendation of the expert committee, certain guidelines were issued for conducting written examination for persons with specified disabilities covered under the definition of Section 2(s) of the RPwD Act, 2016, but not covered under the definition of Section 2(r) of the said Act, i.e. persons having less than 40% disability and having difficulty in writing.

In its decision, the court rejected a contention by the Institute of Banking Personnel Selection that they are not amenable to writ jurisdiction. It is noteworthy mentioning that the office memorandum clearly stated that the guidelines are applicable to all the authorities, the bench pointed out.

"As such, the benefits conferred by the statute should be provided for all the PwD candidates and they cannot be denied on the ground of absence of accountability and/or lack of duty on enforceability," the bench said.

The court thus directed the Union government to consider the following aspects to renotify the office memorandum:

(i) direct all the authorities/recruitment agencies/examining bodies to uniformly follow the guidelines issued by the Union government which is the nodal agency and ensure strict adherence through periodic surveys/verification;

(ii) carry out periodic sensitization drives at educational institutions to raise awareness among the examination conducting bodies so as to ensure that the OMs are effectively implemented;

(iii) set up a grievance redressal portal to register complaints, which would permit the candidates to approach it first before approaching the court of law;

(iv) inspect the guidelines framed by different authorities and re-notify the existing guidelines to ensure compliance;

(v) extend the validity of the scribe certificate (currently being valid only for 6 months) to prevent the long wait time after applying, especially, in rural areas;

(vi) set up incentive programs for scribes to ensure their availability and provide necessary training;

(vii) provide some time prior to the examination to allow the candidates to familiarize themselves with the scribe to ensure that there is a sense of comfort while communicating with the scribe during the examination;

(viii) offer PwD candidates a choice of examination modes, such as scribe, braille, large print, audio recording of answers, etc.;

(ix) take penal action against authorities/officials in charge of decision making process, who fail to follow the guidelines set out by the Union government and formulate guidelines that exclude PwD;

(x) sensitise the persons working for the respondent authorities, and train them on a regular basis, to address the reasonable accommodation needs of PwDs; and

(xi) ensure strict compliance of the letter and spirit of the judgments in Vikash Kumar and Avni Prakash as well as the provisions of the RPwD Act, 2016, with a special focus on ‘reasonable accommodation’.

The court posted the matter for reporting compliance after two months.

Case Title: Gulshan Kumar Vs Institute of Banking Personnel Selection & Ors