Shibli K. v. Union of India and Others

_**WP(C).3947/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **WP(C) NO. 3947 OF 2021** ## **PETITIONER/S:** SHIBLI K. AGED 28 YEARS S/O.UMMERKUTTY, ILLSLAND, NEAR MUNSIFF COURT, THALIPARAMBA, KANNUR DT. PIN 670 141. BY ADVS. BONNY BENNY SRI.NABIL KHADER JINSAB M.P ## **RESPONDENT/S:** 1 UNION OF INDIA REP.BY ITS SECRETARY, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, DEPARTMENT OF DISABILITY AFFAIRS, NEW DELHI 110 001. 2 THE STATE OF KERALA REP.BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 3 SPECIAL SECRETARY SOCIAL JUSTICE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 4 THE STATE COMMISSIONER FOR PERSONS WITH DISABILITIES TRIVANDRUM-KERALA 695 004. 5 KERALA STATE PUBLIC SERVICE COMMISSION REP.BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004. BY ADVS.ASGI S.MANU SMT.O.M.SHALINA, CGC SRI.P.C.SASIDHARAN _**WP(C).3947/21**_ 2 ## **OTHER PRESENT:** GP VENUGOPAL V. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.2.2022, THE COURT ON 25.07.2022 DELIVERED THE FOLLOWING: _**WP(C).3947/21**_ 3 ## **V.G.ARUN, J.** ## **----------------------------------------------W.P(C).No. 3947 of 2021 ----------------------------------------------Dated this the 25[th] day of July, 2022** ## **JUDGMENT** The petitioner is a physically challenged person with 100% visual disability from birth. Undaunted by his disability, the petitioner acquired double post graduation in MBA programme as also M.Com in International Business Operations. He also qualified the National Eligibility Test with JRF in Management and Commerce streams. The petitioner is presently pursuing his Ph.D in Management. The petitioner had appeared for the Kerala Administrative Examination conducted by the Public Service Commission/fifth respondent on 22.2.2020. According to the petitioner, he had to undergo mental trauma and stress during the examination, since the scribe appointed for assisting him was not able to read or comprehend the questions in a proper manner. Thereafter, the petitioner applied for the post of Assistant Professor in Business Administration, the examination for which was slated to be conducted on 6.4.2021. The writ petition is filed voicing a grievance that the 5th respondent is not granting extra time for objective examinations for candidates _**WP(C).3947/21**_ 4 with visual disability and incompetence of the scribes is resulting in the chances for appointment of persons with disability being defeated. Even though the examination of Assistant Professor in Business Administration, which was the immediate cause of action for filing the writ petition is over, considering that a decision on the point mooted by the petitioner will be of general benefit to candidates with disability, I deem it appropriate to decide the writ petition on merits. 2. Learned Counsel for the petitioner submitted that the issues faced by persons with disability during the competitive examinations are to a large extent addressed by Exhibits P4 and P5 Office Memorandums issued by the Ministry of Social Justice and Empowerment, Government of India. Exhibit P4 was issued, finding that a uniform and comprehensive policy is required for persons with disabilities so as to provide a level playing field. It was also noticed that the policy should have flexibility to accommodate the specific needs on a case-to-case basis. The relevant clauses in Exhibit P4, providing for scribe assistance read as under; - “ _III.The facility of Scribe/Reader/Lab Assistant should be allowed to any person who has disability of 40% or more if so desired by the person._ - _IV. The candidate should have the discretion of opting_ _**WP(C).3947/21**_ 5 _for his own scribe/reader/lab assistant or request the Examination Body for the same. The examining body may also identify the scribe/ reader/lab assistant to make panels at the District/Division/ State level as per the requirements of the examination. In such instances the candidates should be allowed to meet the scribe a day before the examination so that the candidate gets a chance to check and verify whether the scribe is suitable or not._ ## _xx xx xx_ - _XI. 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 making use of scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis.”_ The position was further clarified by Exhibit P5, the relevant portion of which is extracted below; - _“V. The candidate should have the discretion of opting for his own scribe/reader/lab assistant or request the Examination Body for the same. The examining body may also identify the scribe/ reader/lab assistant to make panels at the District/Division/ State level as per the requirements of the examination. In such instances the candidates_ _**WP(C).3947/21**_ 6 _should be allowed to meet the scribe two days before the examination so that the candidates get a chance to check and verify whether the scribe is suitable or not._ - _VI. In case the examining body provides the scribe/reader/lab assistant, it shall be ensured that qualification of the scribe should not be more than the minimum qualification criteria of the examination. However, the qualification of the scribe/reader should always be matriculate or above._ _In case the candidate is allowed to bring his own scribe, the qualification of the scribe should be one step below the qualification of the candidate taking examination. The persons with benchmark disabilities opting for own scribe/reader should submit details of the own scribe as per proforma at APPENDIX-II._ - _VII. There should also be flexibility in accommodating any change in scribe/reader/lab assistant in case of emergency. The candidates should also be allowed to take more than one scribe/reader for writing different papers, especially for languages. However, there can be only one scribe per subject._ ## _xx xx xx_ - _XII. 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_ _**WP(C).3947/21**_ 7 _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.”_ 3. A conjoint reading of the above provisions shows that the examining body should either provide the candidate with the option of choosing his own scribe or the examining body should identify and make panels of scribes as per the requirement of the examination. In such event, the candidate should be allowed to meet the scribe two days before the examination in order to check and verify whether the scribe is suitable or not. 4. In this context, it is pertinent to note that the fifth respondent has also issued Exhibit P6 circular dealing with appointment of scribes and grant of compensatory time to candidates with disability. Although compensatory time of 20 minutes for every one hour is allowed for written examinations (subjective), such benefit is not extended to objective examinations. Further, the circular does not provide the candidate with the option of choosing his own scribe or an opportunity to meet and interact with the scribe provided by the _**WP(C).3947/21**_ 8 fifth respondent prior to the examination. The Central Government having issued Exhibits P4 and P5, the fifth respondent is bound to adopt and follow the stipulations therein, lest the very objective of the beneficial enactment _viz;_ the Rights of Persons With Disabilities Act, 2016 will be rendered otiose. 5. The fifth respondent has filed a counter affidavit stating that the writ petition is rendered infructuous, since the cause of action was the examination under category No.46/2020 which is already over. It is stated that the difficulties faced by differently abled persons stands redressed to a large extent by Circular No.4/2019 issued by the Commission. The Circular provides for grant of compensatory time of 20 minutes for every one hour to candidates availing scribe assistance for written (descriptive type) test. It is submitted that, as per decision No.7 dated 28.9.2020, the Commission decided to prepare a panel of scribes having lesser qualification than the qualification prescribed for the post for which the test is being conducted. The Commission also decided to grant 15 minutes extra time for OMR test for candidates availing the benefit of scribe. The prayer for permitting differently abled persons with the option of choosing their own scribes is objected to, contending that, if a scribe of the candidate's choice is appointed that will be akin to giving assent to manipulations and extraneous considerations. _**WP(C).3947/21**_ 9 6. The Rights of Persons with Disabilities Act, 2016 is enacted with the objective of giving effect to the United Nations Convention on the Rights of Persons with Disabilities. Section 20 of the Act guarantees non-discrimination in employment and Section 21 require every establishment to notify the equal opportunity policy. In furtherance of the objectives of the Act, the Central Government issued Exhibits P4 and P5 guidelines. By issuing circular No.4/2019 followed by decision No.7 dated 28.9.2020, the fifth respondent Commission has, to a large extent, adopted the directives in the circulars issued by the Central Government. It is pertinent to note that in Exhibit P5, the Central Government has specifically laid down that the candidate should be given the discretion of opting his own scribe or of requesting the examination body for the same. It is also specified that when the examination body is providing scribe assistance, the candidate should be allowed to meet the scribe two days before the examination. The above stipulations has so far not been adopted by the fifth respondent Commission. As a matter of fact, the apprehension that scribe assistance may be misused if the option of choosing the scribe is left to the discretion of the candidate is addressed by the Apex Court in _Vikash Kumar v. Union Public Service Commission & Ors._ [2021 (5) SCC 370], the contextually relevant paragraph of which reads as under; _**WP(C).3947/21**_ 10 _**79.** Ms.Madhavi Divan, learned Additional Solicitor General laid emphasis on the competitive nature of the CSE and of the need to preserve the purity of the examination. The difficulty in accepting the argument lies in the sequitur. There can be no doubt about the fact that the CSE is competitive in itself. There can similarly be no doubt about the need to preserve the purity of the examination. But the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens—persons with disability who need a scribe— from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law. There are two further responses to this argument. First, Ms Divan has not furnished any empirical data to substantiate the assertion that persons with disabilities are misusing the facility of scribes to obtain any undue advantage. As noted earlier, a justification to provide a reasonable accommodation must be based on objective criteria. The conjecture as to misuse does not meet this test._ _**80.** Further, we are of the considered view that undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day-to-day lives. One of them is that they do not perform as well as others. Like other stereotypes, this one is also totally flawed and contrary to reality. Such an ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the 2016 RPwD Act. To think that persons with disabilities who do not have a benchmark disability but nonetheless request access_ _**WP(C).3947/21**_ 11 _to a scribe, as a class, have the objective of gaming the system is to misunderstand their aspiration, to stamp them with a badge of cheaters and to deprive them of their lawful entitlements. The system may be vulnerable to being gamed by able-bodied persons, however, it is the persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations by giving up their legal entitlements on the presumption that there is a possibility of misuse._ _**81.** When competent persons with disabilities are unable to realise their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom. The most significant loser as a consequence of UPSC's rigid approach in this case (of refusing to provide scribes to those not having benchmark disabilities) is UPSC itself. For it is denying to the nation the opportunity to be served by highly competent people who claim nothing but access to equal opportunity and a barrier-free environment._ _**82.** When an able-bodied student engages in cheating, the normal consequence is their disqualification or other suitable punitive action. The same consequence can flow from a candidate using their disability to game the system. If some incidents come to light of able-bodied candidates hiding chits in their dress code and misusing them to cheat in an exam, the normal consequence is suitable punitive action against such students. It is not to switch to a different dress code that is so uncomfortable that many competent students find it hard to sit in it for the entire duration of the exam and perform to the best of their ability. In the same way, just because of the fault of some bad apples in the system,_ _**WP(C).3947/21**_ 12 _persons with disabilities whose disability necessitates access to a scribe cannot be disentitled from claiming the same._ _**83.** Second, the examining body is entitled to prescribe procedures that ensure against a misuse and to deal with any instances which may come to light. This is not a problem peculiar to India or that of an intractable nature. To illustrate, in March 2019, the US Federal Bureau of Investigation launched an investigation code named Operation Varsity Blues which is popularly known as the “College Admissions Scandal”. As part of the investigation, several individuals were arrested and charged on the allegation of seeking extended time on college entrance exams, by falsely making it appear that the students concerned had learning disabilities, so as to acquire the requisite medical documentation. Once the accommodation was approved, large-scale cheating and impersonation took place at test centres in Houston, Texas and Hollywood, California. Suffice it to say that the possibility of misuse cannot be used to deprive equal access to persons with disability from seeking the facility of a scribe. Absent such a facility, persons such as the appellant who suffer from a chronic neurological condition would be deprived of a statutory right of equal opportunity in gaining an appointment to public services. To do so would negate both the constitutional right and its statutory recognition in the provisions of the 2016 RPwD Act.”_ 7. Going by the above dictum, even if the candidate is not given the option for choosing his own scribe, the fifth respondent is bound to permit the candidate to interact with the scribe provided by the Commission in advance. The performance of a visually challenged candidate like the petitioner is wholly _**WP(C).3947/21**_ 13 dependent on the scribe's capacity of comprehending the questions and communicating with the candidate. The scribe should therefore be a person with sufficient intellectual capacity for comprehending the questions, the ability to read out the questions to the candidate clearly and to write down the answers given by the candidate legibly. Any laxity or shortcoming of the scribe in this regard will definitely impact the performance of the candidate. Therefore, in addition to the facilities now provided, the fifth respondent should also make provision for interaction between the candidate and his/her scribe in advance. If the candidate is not comfortable or confident about the scribe, then the service of another scribe should be made available. In the result, the writ petition is disposed of as under; The fifth respondent Commission shall provide opportunity to candidates with visual disability above 40% to interact with the scribe provided by the Commission at least two days in advance. If, after such interaction, the candidate finds the scribe to be unsuitable, the fifth respondent shall provide the assistance of another scribe from the panel of scribes prepared for that particular examination. Sd/- ## **V.G.ARUN, JUDGE** _vgs_ _**WP(C).3947/21**_ 14 ## **APPENDIX OF WP(C) 3947/2021** PETITIONER EXHIBITS EXHIBIT P1 THE DISABILITY CERTIFICATE NO.50/15 ISSUED TO THE PETITIONER FROM THE GOVT. TALUK H.Q HOSPITAL TALIPARAMBA ON DT.1.8.2015. EXHIBIT P2 THE PHOTOSTAT COPY OF THE MAIL FORWARDED TO THE 3RD RESPONDENT DATED 16.12.2020 EXHIBIT P3 THE PHOTOSTAT COPY OF THE MAIL FORWARDED TO THE 4TH RESPONDENT DATED 11.3.2020 EXHIBIT P4 THE PHOTOSTAT COPY OF THE OFFICE MEMORANDUM F. NO.16-110/2003-DD.III DATED 26TH FEBRUARY, 2013 BY GOVERNMENT OF INDIA, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, DEPARTMENT OF DISABILITY AFFAIRS. EXHIBIT P5 THE PHOTOSTAT COPY OF THE OF THE MEMORANDUM NO.34-02/2015-DD III GOVERNMENT OF INDIA MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES DATED 29.8.2018. EXHIBIT P6 THE PHOTOSTAT COPY OF THE CIRCULAR NO.4/2019 DATED 10.5.2019 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P7 THE PHOTOSTAT COPY OF THE APPLICATION DATED 25.9.2020 SUBMITTED BY THE PETITIONER EXHIBIT P8 THE PHOTOSTAT COPY OF THE SYLLABUS FOR THE EXAMINATION PUBLISHED BY THE 5TH RESPONDENT. EXHIBIT P9: COPY OF RELEVANT PAGES OF CIRCULAR NO.CBSE/COORD/112233/2018 DATED 26TH SEPTEMBER, 2018 ISSUED BY THE CBSE. EXHIBIT P10: COPY OF RESERVE BANK OF INDIA RECRUITMENT OF ASSISTANTS GUIDELINES FOR VISUALLY IMPAIRED & ORTHOPEADICALLY CHALLENGED CANDIDATES USING SCRIBE. _**WP(C).3947/21**_ 15 EXHIBIT P11: COPY OF WEBPAGE OF NATIONAL POWER CORPORATION OF INDIA LTD. EXHIBIT P12: THE IMPORTANT INSTRUCTIONS PUBLISHED BY UNION PUBLIC SERVICE COMMISSION.