State of Kerala & Others v Blesson Baby (minor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR** **& THE HONOURABLE MR.JUSTICE GOPINATH P.** **THURSDAY, THE 18TH DAY OF MARCH 2021/27TH PHALGUNA, 1942** ## **W.A.No.440 OF 2020** **AGAINST THE JUDGMENT DATED 20.2.2020 IN W.P(C).NO.4499/2020(J) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS IN W.P(C):** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX, THIRUVANANTHAPURAM 695 001.** - **2 THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR OF GENERAL EDUCATION, DEPARTMENT OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM 695 014.** - **4 DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT 683101** - **5 GOVERNMENT HIGHER SECONDARY SCHOOL, KADAYIRIPPU, REP BY ITS HEADMISTRESS, KADAYIRIPPU P.O, KOLENCHERY, ERNAKULAM DISTRICT 682 311** - **6 THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM 682 011** - **BY SMT.RAJI T. BHASKER, GOVERNMENT PLEADER** ## **RESPONDENT/PETITIONER IN WP(C):** **BLESSON BABY (MINOR) AGED 16 YEARS, REP. BY NEXT FRIEND, FATHER SRI BABY M.C MATTAPILLIL HOUSE, PANCODE P.O, PUTHENCRUZ, ERNAKULAM DISTRICT 682 310.** > **ADDL.2ND RESPONDENT THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **THE ADDL.2ND RESPONDENT IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 18.3.2021 IN W.A.NO.440/2020.** **R1 BY ADV. SRI.SHEJI P.ABRAHAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.440/2020 :: 3 ::** **'C.R.'** ## **J U D G M E N T** ## _**Gopinath P.,J.**_ This appeal arises from the judgment of a learned Single Judge of this Court in W.P.(C).No.4499/2020. The writ petition was filed by one Blessen Baby, a minor represented by his next friend & father Sri.Baby.M.C. The grievance of the writ petitioner was that his request for the assistance of a scribe, and for extra time to complete the SSLC examination, was rejected, purportedly with reference to certain guidelines issued by the Government regarding the conduct of SSLC examinations in the State of Kerala. It is the specific case of the petitioner that the guidelines cannot run counter to the provisions of the Rights of Persons with Disabilities Act, 2016 [hereinafter referred to as the 'Act']. 2. The learned Single Judge, on a consideration of the matter, found that the right to get the assistance of a scribe and for extra time to complete the SSLC examination was, in terms of the provisions contained in Section 17 (i) of the Act, to be **W.A.No.440/2020 :: 4 ::** extended to _‘persons with disability’_ as defined in Section 2(s) of the Act and not only to persons with a _‘benchmark disability’_ as defined in Section 2(r) of the Act. Accordingly, the writ petition was allowed, and appropriate directions were issued by the learned Single Judge. The learned Single Judge also found that the guidelines issued by the Government in respect of the conduct of the SSLC examination, which prescribes that a minimum 40% disability is required for getting the assistance of a scribe, is contrary to the provisions of the Act. On the facts, the learned Single Judge also noticed that the writ petitioner was a differently-abled child having a borderline IQ of 76 with dyslexia as certified by a competent Medical Board. 3. Inasmuch as the facts are as above, and noticing that the learned Single Judge has confined the directions issued to the facts of the case, and has further directed that the judgment shall not be treated as a precedent in any manner, we do not think that the State of Kerala or its officers had any grievance warranting the filing of this intra Court appeal under Section 5 of the High Court Act. The Writ Appeal will, therefore, stand dismissed. **W.A.No.440/2020 :: 5 ::** 4. The learned counsel appearing for the 1[st] respondent/writ petitioner would alertly point out that the issue has been adjudicated by a three-member Bench of the Supreme Court in **Vikash Kumar v. Union Public Service Commission & Others 2021 SCC OnLine SC 84** , where, after an exhaustive survey of the provisions of the Act, the Court held: - ## _**“F. Benchmark disability not a precondition to obtaining a scribe**_ _**35.** It is in this backdrop that the Court must resolve the issue, bearing as it does on the rights of similarly situated candidates. 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._ **W.A.No.440/2020 :: 6 ::** _**36.** 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 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._ _**37.** Section 2(s) is significant because it recognizes firstly, the nature of the impairment, secondly, the interconnection of the impairment with various barriers and thirdly, the impact of the impairment in hindering full and effective participation on a footing of equality. On the first aspect namely the nature of the impairment, Section 2(s) requires that the impairment should be long term-physical, mental, intellectual or sensory. The statutory definition has evidently recognized that it is the nature of the impairment in its interaction with barriers that results in the full and effective participation of the person in society equally with others being hampered. Section 2(s) is, in other words, a far-reaching recognition by the legislature of disability as not only a function of a physical or mental impairment but of its interaction with barriers resulting in a social milieu which prevents the realization of full, effective and equal participation in society._ _**38.** Both as a matter of textual construction and bearing in mind the purpose and object underlying the term, it is necessary to emphasise that the definition in Section 2(s) cannot be constricted by the measurable quantifications tagged with the definition under Section 2(r)._ _**39.** The concept of a benchmark disability under Section 2(r) cannot be conflated with the notion of disability under Section_ **W.A.No.440/2020 :: 7 ::** _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. The Schedule to the Act incorporates five specified disabilities:_ _1. Physical disabilities comprised of_ _(a) Locomotor disability including_ _(i) leprosy cured persons_ _(ii) cerebral palsy_ _(iii) dwarfism_ _(iv) muscular dystrophy_ _(v) acid attack victims;_ _(b) Visual impairment encompassing_ _(i) blindness_ _(ii) low-vision_ _(c) Hearing impairment_ _(d) Speech and language disability_ _2. Intellectual disability including_ _(a) specific learning disabilities_ _(b) autism spectrum disorder_ _3. Mental behavior_ _4. Disability caused due to_ _(a) Chronic neurological conditions, such as_ _(i) multiple sclerosis_ _(ii) parkinson's disease_ _(b) Blood disorder_ _5. Multiple disabilities (more than one of the above specified disabilities)._ _**40.** The Central government has been empowered to notify any other category as a specified disability._ **W.A.No.440/2020 :: 8 ::** _**41.** The concept of benchmark disabilities under the RPwD Act, 2016 has specifically been adopted in relation with the provisions of Chapter VI and Chapter VII. Chapter VI contains special provisions for persons with benchmark disabilities. Among those provisions is Section 31 (free education for children with benchmark disability), Section 32 (reservation in higher educational institutions), Section 33 (identification of posts for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and Section 37 (Special Schemes and Development Programmes). Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities has been adopted by the legislation bearing in mind specific provisions which are contained in the law for persons meeting this description._ _**42.** 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.”_ Thereafter, the Supreme Court has issued directions regarding the Formulation of a new policy concerning access to scribes for persons with disabilities and directed as follows: - ## _**“M. Formulation of new policy concerning access to scribes for persons with disabilities**_ _93. Before concluding, we also intend to issue a broader direction to the Union Government in the Ministry of Social Justice and Empowerment to ensure the framing of proper_ **W.A.No.440/2020 :: 9 ::** _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. This exercise shall be completed within a period of three months of the receipt of a certified copy of this judgment and a copy of the guidelines shall be transmitted to the Registrar (Judicial) of this Court. Upon receipt of the guidelines the Registrar (Judicial) shall place it on the record upon which the proceeding shall be listed under the caption of directions.”_ We, therefore, feel that it is only appropriate, in the interests of the public at large, and taking note of the directions issued by the Supreme Court in **Vikash Kumar (supra)** , that the guidelines in vogue and issued by the Government of Kerala be re-visited, and fresh guidelines be issued, if necessary, after taking note of the guidelines issued or to be issued by the Ministry of Social Justice and Empowerment of the Government of India in tune with the directions issued by the Supreme Court. Let the needful be done within a period of six months from the date of receipt of a copy of this judgment. **W.A.No.440/2020 :: 10 ::** In the interregnum, any matter arising for consideration shall be decided in the light of the specific directions issued by the Supreme Court in the judgment referred above. In order to ensure that the above direction is strictly complied with we deem it appropriate to _suo motu_ implead the Chief Secretary to the Government of Kerala, Government Secretariat, Thiruvananthapuram - 695 001, as the additional 2[nd] respondent in the Writ Appeal. The Registry shall carry out the necessary amendments to the cause title. A certified copy of this judgment shall also be forwarded to the additional 2[nd] respondent for compliance. **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/GOPINATH P. JUDGE** prp/19/3/21