A two-judge Bench of Justice Dr. DY Chandrachud and Justice AS Bopanna has held that rights and entitlements which are conferred upon PwD cannot be constricted by adopting a definition of benchmark disability as a condition precedent or as a condition of eligibility for availing the rights under the Right of Persons with Disabilities Act, 2016 (RPwD Act). The Court has directed the National Testing Agency (NTA) to consider what steps could be taken to rectify the injustice done to the Appellant who is Person With Disability (PwD) as well as benchmark disability as per the RPwD Act, 2016.

Advocate Mr. Rushabh Vidyarthi appeared for the Appellant, while Advocate Mr. Rupesh Kumar appeared for Respondent No. 1 during the proceedings before the Court.

An appeal was preferred before the Supreme Court assailing the judgment of Bombay High Court which had dismissed the appeal of the Appellant under Article 226 of the Constitution.

In this case, the Appellant suffered from a specified disability 'Dysgraphia' listed under Entry 2(a) of the Schedule to the RPwD Act. She was diagnosed with 40% permanent disability which fell under the statutory definition of 'benchmark disability' under Section 2(r) of the RPwD Act. The Appellant further alleged that she appeared for the NEET examination on 12th September '21 where she claimed a relaxation of an additional one hour of compensatory time as against the total time of three hours for regular candidates.

The Appellant alleged that towards the end of the examination, her answer sheet was forcibly collected together with regular candidates appearing for the exam, thus depriving her of compensatory time.

Further, the Appellant contended that Respondent No. 2 (The examination Centre) was ignorant of the grant of special facilities to be provided to the PwD candidates.

Before the High Court, the Appellant sought a direction to the Respondent No. 1 (NTA) to hold a fresh examination for her while accommodating her all relaxations and benefits to which she was entitled under the Regulations.

While complying with the High Court's interim order, the Appellant contended that she approached the Grant Government Medical College, Mumbai for the grant of certificate of disability as per the format prescribed under the Rules but she was informed that such a certificate was applicable only at the time of admission to the course and not otherwise. The High Court although dismissed her petition but ordered for a fresh examination for the Appellant which was stayed by the Apex Court.

The Appellant contended before the Supreme Court that the First Respondent (NTA) misunderstood the different stages and distinct relaxations that are granted to a student with a specified disability.

The grant of compensatory time was an intrinsic element of the requirement of an inclusive education under Section 17(i) of the RPwD Act 2016, urged the Appellant.

While the Respondent contended that any relief in the form of alteration of result granted to the Appellant would cause serious prejudice to the candidates ranked above the Appellant.

The issue which was dealt with by the Court was whether the Appellant was entitled to an hour's worth of compensatory time owing to her PwD status under the NEET Bulletin 2021 and the Guidelines for Written Examination issued by the Ministry of Social Empowerment and Justice on 29 August 2018.

While analyzing the various benefits and provisions available to the PwD candidates, the Apex Court held that the First Respondent as a testing agency was assigned specified functions that were clarified in the NEET Bulletin 2021. The Appellant suffered from 40% disability in the form of Dysgraphia and suffered a tragedy of errors in the process of leading up to admissions for the graduate medical courses in 2021, over which she had no control.

Further, the Court held that statement of the First Respondent before the High Court was plainly contrary to the provisions of NEET Bulletin 2021.

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

Additionally, the Court noted, "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 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."

Applicability of RPwD Act

Distinction between PwD and PwBD

While relying on the precedent of Vikash Kumar v. Union Public Service Commission, the Court noted that the concept of benchmark disability was applicable to the context of provisions stipulated in Chapter VI of RPwD Act which mentions the several rights that are available to PwBD.

In this context, the Court observed that the rights and entitlements conferred upon PwD are specified in Chapter II.

Further, the Bench opined, "Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI. Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability."

Right to Inclusive Education

"The provision of inclusive education is not limited to children with disabilities but extends to adults with disabilities. Chapter VI prescribes special provisions for persons with benchmark disabilities, including reservations in higher educational institutions of not less than 5 per cent seats under Section 32," the Court held.

Further the Court added, "Provisions for reservation in Chapter VI specifically for PwBD are distinct from the provisions in Chapter III for PwD. PwD encompasses a wider group of which PwBD is a sub-set. This distinction extends to efforts under Section 17 to promote inclusive education."

The Court held, "The right to inclusive education is realised through the provision of reasonable accommodation. In Vikash Kumar (supra), this Court emphasised that reasonable accommodation is at the heart of the principle of equality and non-discrimination espoused under the RPwD Act 2016."

The Court also observed that the Appellant was denied her entitlement to reasonable accommodation and the State failed to fulfill its positive duty of protecting her right to inclusive education.

"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," the Bench observed.

"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," the Court noted.

The Court agreed with the contention of the First Respondent 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 a decision of a two judge Bench of this Court in National Testing Agency v. Vaishnavi Vijay Bhopale," the Court added.

Furthermore, the Court held, "We are in agreement with the view in Vaishnavi Vijay (supra) that holding a fresh examination is neither practicable nor proper. Holding a fresh examination will delay medical admissions and cause uncertainty and chaos. To that extent, the denial of the relief sought for conducting a fresh examination for the appellant is not disturbed."

The Court while directing the First Respondent to address the grievance of the Appellant held, "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."

Additionally, the Bench observed, "The first respondent may consider extrapolation of the marks awarded to the appellant or grant compensatory marks. Similar to the steps in Vaishnavi Vijay (supra), the first respondent could also consider adopting a 'no negative marks' scheme."

"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 Court held.

The Court noted, "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."

In the light of these observations, the Court disposed of the Appeal.

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