Kerala High Court: In a PIL seeking extension of facilities to every person with a disability in need of special assistance irrespective of the percentage of disability, the Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J., issued notice to Union Government and the State of Kerala.
The petitioner, a person with 25% learning disability, had approached the Court with an allegation that the disability criteria for the students in need of special assistance in the State Government schools for the SSLC (Secondary School Leaving Certificate) and Higher Secondary Examinations is still 40% or above and that the State Government has not framed any rules for the differently abled students as directed by the High Court in Blessen Baby v. State of Kerala, 2020 SCC OnLine Ker 714.
Noticeably, when the petitioner was studying in Class X, his request for a scribe as per Section 4(2) and 17(i) of the Right of Persons with Disabilities Act, 2016 for the public examination was rejected by the authorities on the ground that the disability should be 40% or above for the assistance of a scribe for the SSLC examination for the year 2020.
While hearing the petitioner, at that time, the Court in Blessen Baby case (supra) had directed the State Government to re-visit the guidelines in vogue issued by the Government of Kerala and to issue fresh guidelines, after taking note of the guidelines issued or to be issued by the Ministry of Social Justice and Empowerment, Union Government in tune with the directions issued by the Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 SCC Online SC 84.
Pursuant to the directions of the Court, the petitioner had passed his Xth and XIIth standard examinations with the aid of a scribe.
In Avni Prakash v. National Testing Agency (NTA), 2021 SCC OnLine SC 1112, the Supreme Court observed that despite the clarification of the position in law in Vikash Kumar (supra), the law continues to be violated and NTA has continued to restrict the grant of facilities only to Persons with Benchmark Disability (PwBD). To address the hardships faced by the persons with disability, the Supreme Court issued the following directions:
“The facility of reservation in terms of Section 32 of the Rights of Persons with Disability (RPwD) Act, 2016 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.
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.
Having due regard to the decision of this Court in Vikash Kumar (supra) and the statutory provisions contained in the RPwD Act, 2016, facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the RPwD Act, 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and
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.”
On the contention of the State that it had already issued guidelines in the matter of extending concession to the candidates with special needs having 40% or more disability, the petitioner submitted that irrespective of the percentage of disability, the benefits of the earlier judgment of the Court may be extended to all the students in need of special assistance in SSLC as well as first year and second year Higher Secondary examinations.
Considering the above, the Court had issued notice to the Union Government and the State of Kerala.
[Blessen Baby v. Union of India, 2022 SCC OnLine Ker 4269, decided on 04-08-2022]
Advocates who appeared in this case :
Mr. Sheji P. Abraham, learned counsel for the petitioner;
S. Manu, learned ASGI, Sri. N. Manoj Kumar, learned State Attorney.
*Kamini Sharma, Editorial Assistant has put this report together.