VIKAS KUMAR V. UNION PUBLIC SERVICE COMMISSION & OTHERS

VIKAS KUMAR V. UNION PUBLIC SERVICE COMMISSION & OTHERS

This case Vikas Kumar V. UPSC is related towards affirming the position of persons with disabilities as right bearers. Here, Vikas Kumar holding that an individual Suffering from dysgraphia or writer’s cramp is entitled to a scribe in the Civil Services Examination (CSE) is a significant step towards affirming the position of persons with disabilities as right bearers.

Factual Background:-

This Court has received a visit from a citizen who is experiencing a writer’s cramp. His complaint is that the civil service examination denied him a position as a scribal. The case has progressed through the courts as an individual complaint. In August 2016, he graduated with an MBBS degree from the Jawaharlal Nehru Organization of Post-Graduate Clinical Guidance and Exploration, prominently known by the abbreviation JIPMER. Proposing to seek a profession in the common administration, he showed up in 2017 for the CSE. A recorder was given to him by the Association Public Administrations Commission4 to empower him to show up in the composed test. In the web-based application structure for CSE 2017, the litigant proclaimed himself to be an individual with a locomotor handicap to profit from the administration of a recorder. On 7 February 2018, UPSC gave a notice for the CSE 20185.

The Branch of Faculty and Training6 gave the CSE Rules 2018 accommodating the way and lead of the assessment. The overall guidelines are given that all competitors should compose their papers in their own hands and won’t be permitted the assistance of a copyist. Exemptions for this standard were accommodated blind up-and-comers; applicants with locomotor incapacity and cerebral paralysis where the “prevailing (composting) is impacted to the degree of easing back the exhibition of capability (least of 40% weakness)”. Up-and-comers inside the exemption were permitted the assistance of a recorder. An extra ‘compensatory season’ of twenty minutes of great importance was additionally to be allowed to such applicants. In his web-based application for the CSE 2018, the litigant proclaimed himself to be an individual with a benchmark handicap of 40% or more. In his email dated 28 February 2018, the litigant mentioned the UPSC to furnish him with a copyist for the assessment. UPSC, by its letter dated 15 Walk 2018, dismissed the solicitation on the ground that a recorder could be furnished exclusively to daze endlessly up-and-comers with the locomotor inability or cerebral paralysis with a hindrance of no less than 40% and the litigant didn’t meet this measure. The litigant likewise looked to show up for determination to the post of Clinical Official as per the Joined Clinical Benefits Assessment 2017 led under the sponsorship of UPSC. He moved toward the Clinical Leading body of Slam Manohar Lohia Emergency Clinic, Delhi to get an incapacity declaration. By correspondence dated 12 February 2018, the handicap endorsement was denied to him. This drove the litigant to introduce a test before the Focal Managerial Tribunal7 where the case is as yet forthcoming settlement.

ISSUES:-

The petitioner, Vikash Kumar, was denied the services of a scribe, which led to this case. Kumar suffers from what is commonly referred to as a writer’s cramp. He wanted to pass the UPSC exams after earning an MBBS from the Jawaharlal Nehru Institute of Postgraduate Medical Instruction and Research.

The Court then proceeded to make a decision after considering this set of facts. The court’s first ruling was that it examined the provisions of the 2016 Rights of Persons with Disabilities Act. This is a brand-new Indian law that took the place of the previous act, which was passed in 1995. Additionally, there are two distinct definitions of disability in this legislation. Section 2(s) provides a broad definition of a person with a disability, which is a person who has a long-term physical, mental, intellectual, or sensory impairment that, when combined with barriers, prevents him from fully and effectively participating in society alongside other people.

This gets from the CRPD definition and is from the social model of incapacity and not a clinical model, it gives a wide and unconditional meaning of what an individual with an inability would be. A person with a benchmark disability is the subject of a further definition in section 2 (r).

Additionally, a person with at least 40% of a given disability is only included in this benchmark for disabilities. Currently, benchmark disability is restricted by a few provisions of the law, including reservations in public employment and a few other provisions.

CONTENTION OF APPELLANT:-

Medical certificates dated 21 March 2015 and 27 August 2018 certify that the appellant suffers from Writer’s Cramp and would require a scribe. As per Segment 2(s) of the RPwD Act, 2016, an individual with a handicap implies an individual with long haul, physical, mental, scholarly, and tangible weakness, which frustrates their full and compelling support in the public eye. These certificates demonstrate the appellant’s eligibility for the Act’s protection under Section 2(s) Essayist’s Spasm, or dysgraphia is a particular handicap and is recorded in passage 2(a) of the Timetable to the RPwD Act, 2016. In a notification dated January 14, 2018, the Ministry of Social Justice and Empowerment also acknowledged the specific learning disability of dysgraphia. Section 20 of the RPwD Act of 2016 is in violation of the CSE Rules 2018 and CSE Notification 2018. The arrangement of copyists and compensatory time during the assessment to competitors, for example, the litigant are sensible facilities important to be given under the RPwD Act, 2016, Because they only provide scribes for candidates who are blind, have a locomotor disability, or have cerebral palsy, the CSE Rules 2018 and the CSE Notification 2018 violate Articles 14 and 16(1) of the Constitution as well as the RPwD Act, 2016. Applications are invited from all individuals with disabilities, including those with learning disabilities, and age relaxation is provided for them in the 2018 CSE Rules. In any case, the arrangement of copyists is restricted to a couple of competitors; The CSE Rules 2018 neglect to perceive that people, for example, the litigant with an Essayist’s Spasm experience issues recorded as a hard copy in their own hand and in this manner, ought to be conceded a comparable office of a recorder; Other Indian institutions, such as the University of Delhi and the Institute of Chartered Accountants of India, recognize Writer’s Cramp as a disability and have provided candidates with scribes; The medical board of AIIMS determined that he had a disability of 6% because of a chronic neurological condition that affected his locomotion and prevented him from moving either himself or objects. The petitioner’s writing ability is not the subject of the evaluation. In addition, the medical report confirms that the appellant has Writer’s Cramp, a condition that makes it difficult for the appellant to write, and backs up previous medical certificates that the appellant has received.

CONTENTION OF UPSC: –

The DoPT’s regulations govern the issue of the appellant’s eligibility for the facility of a scribe for writing the CSE 2018. In accordance with the 2018 CSE Rules, individuals with benchmark disabilities can request the use of a scribe. On the basis of a certificate from a Chief Medical Officer of a Government Healthcare Institution indicating that the individual concerned has a physical limitation to writing and that a scribe is required to write the examination on the candidate’s behalf, individuals with a benchmark disability have access to a scribe. In his application for the CSE 2018, the appellant had incorrectly stated that he did not possess the required medical certificate and that he belonged to the category of individuals with benchmark disabilities; Additionally, the appellant has only claimed under Section 20 of the RPwD Act, 2016 and has not challenged the legality of the CSE Rules 2018.

CONTENTION BY THE UNION OF INDIA:-

The MSJE says that Writer’s Cramp is not a disability; however, a person with Writer’s Cramp has trouble writing. The MSJE had likewise given far reaching rules dated 26 February 2013 on the direct of composed assessments for people with incapacities, which give that the office of a recorder ought to just be permitted to an individual with a handicap of 40% or more. On August 29, 2018, these guidelines were updated to include the ability for candidates with cerebral palsy, locomotor disability, or blindness to use scribes; Additionally, a medical certificate stating that a scribe is required to write the examination in accordance with the candidate’s instructions must be provided for individuals with benchmark disabilities. The Schedule of the 2016 RPwD Act does not specifically include Writer’s Cramp among the list of specified disabilities. As a result, individuals who suffer from Writer’s Cramps are ineligible for the guidelines that were issued on August 29, 2018. However, many of these medical conditions that might make it hard to write haven’t been considered disabilities. The examining body must consider these candidates’ cases and determine whether compensatory time and facilities for scribes will be granted. Seats on public transportation, ramps, and toilets are just a few of the many amenities made available to people with disabilities to make society more inclusive. Explicit measures are embraced in instructive establishments to work with the support of people with handicaps. The level of handicap isn’t pertinent in these unique circumstances. However, the accessibility of facilities for people with disabilities in competitive examinations is determined by a variety of factors. As the UPSC’s CSE examination is extremely competitive. Although it is possible that candidates with disabilities below the standard merit the use of scribes to level the playing field, misuse of this facility cannot be ruled out. The exam’s purity must be maintained in a competitive examination of this kind; furthermore, with respect to the instance of the litigant, a new clinical assessment ought to be directed, to explicitly decide whether his inability is, for example, to require a recorder.

JUDGEMENT:

In a milestone 62-page judgment, the High Court of India has said that the rule of sensible convenience illuminated in the 2016 Rights of People with Handicaps (RPwD) Act, catches the positive commitment of the State and confidential gatherings to offer extra help to people with handicaps to work with their full and viable support in the public eye. The High Court noticed that an ‘individual with handicap’ under the RPwD Act incorporates people with a ‘drawn out physical, mental, scholarly or tangible hindrance which, in cooperation with different obstructions, thwarts full and viable support in the public eye similarly with others. The RPwD independently characterizes people with ‘benchmark handicap’ as individuals who are guaranteed to have at least 40% of the inabilities determined in the Timetable of the RPwD Act. The High Court thought that the higher edge of benchmark handicaps couldn’t be forced to deny equivalent admittance to people with handicaps in opposition to the ethos of non-separation cherished in the principal freedoms part of the Indian Constitution. The judgment explained that the plan of the RPwD Act forced a benchmark inability as a precondition just for admittance to explicit qualifications, for example, governmental policy regarding minorities in society as under Segments 32 and 34 of Part VI. All in all, the shortfall of benchmark handicaps couldn’t be utilized to keep different structures from getting sensible convenience to people with inabilities. The seat depended upon the milestone point of reference of Jeeja Ghosh v. Association of India wherein it was held that correspondence isn’t simply restricted to forestalling separation yet additionally embraces a wide ambit of positive privileges including sensible convenience. The standard of sensible convenience, the Court saw in Vikash Kumar, is a feature of meaningful balance set out in Everyday Remark 6 of the Board of Trustees on the Privileges of People with Handicaps. The Court likewise held that the disavowal of sensible convenience comprises handicap-based segregation under Area 3 of the RPwD Act. The object of the arrangement is to guarantee that people with inabilities can beat treacherous obstructions of rejection without the inconvenience of a lopsided weight. In this unique circumstance, the state has the commitment to foster a proper climate ensuring correspondence of chance to people with handicaps. Sensible convenience, like the office of a recorder, is in this manner an empowering instrument for getting considerable fairness. Further, the state had raised a worry that the arrangement of a copyist could offer an unnecessary benefit to people with handicaps. Accordingly, the Court highlighted the shortfall of exact information to hold that this contention of abuse was unverified. The unwarranted doubt, the Court likewise commented, as a matter of fact, propagated the generalization that people with handicaps need to fall back on state largesse because of their failure to contend on a level battleground. At long last, the Court underlined that it anticipated that the public authority should counsel people with handicaps in a bid to democratize strategy making. It is not yet clear whether such an undertaking brings about an enduring effect. The High Court of Delhi’s impaired judgment and order was overturned by the Hon’ble Supreme Court, which granted the appeal. The appellant was allowed to take the Civil Services Examination or any other government-sponsored competitive selection exam with the assistance of a scribe. Within three months of receiving the certified copy of this judgment, the Ministry of Social Justice and Empowerment was instructed to ensure proper guidelines were drafted to regulate and facilitate scribe facilities for people with disabilities. This must be finished in discussion with general society, explicitly with the unexpected way abled and the associations that address them.

OBSERVATION MADE BY THE COURT:

The supreme court made the observation that the case raises some fundamental issues regarding the achievement of equal opportunity and access for people with disabilities and their ongoing pursuit of dignity. The Supreme Court ordered the AIIMS to set up a medical board, examine the appellant’s condition, and get an expert opinion on the following question as part of the process:

1) Can the appellant be termed a ‘person with a disability under section 2(s) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as ‘the act’)?

 2) What is the extent of the appellant’s disability? 

3) Does his disability meet the benchmark disability under section 2(r) and section 2(zc) of the act? 

The board concluded that bilateral Writer’s Cramp, a “chronic neurological condition,” is the cause of the appellant’s disability. According to the Rights of Persons with Disabilities Act of 2016, the appellant qualifies as a “person with a disability” with a disability level of 6%. Nevertheless, this does not satisfy the “benchmark disability.” According to the AIIMS report, the appellant has a specific disability listed in entry IV of the act’s Schedule.

CONCLUSION:

The principle of equality and nondiscrimination is at the heart of the Rights of Persons with Disabilities Act of 2016. An affirmative declaration of this intention of equality and non-discrimination for people with disabilities without a benchmark disability is provided in Section 3 of the Act. In order to guarantee disabled people’s fundamental rights, all other provisions of the act adhere to this fundamental principle outlined in Section 3. The suspicion of misuse of the scribe facility is not sufficient grounds to deny a group of citizens their statutorily protected rights. This unreasonable suspicion of wrongdoing is unfounded. With able-bodied individuals, the likelihood of circumventing the system is the same. Differently, abled people shouldn’t have to bear the brunt of maintaining the standards of competitive exams by giving up their legal rights because of the possibility of misuse. This rigid system is hurting UPSC itself. People with high levels of expertise are being forced into the private sector. Candidates who attempt to circumvent the UPSC’s system are already subject to sanctions. There is a compelling reason need to put various liabilities on various classes of individuals. The supreme court’s decision to grant the appellant access to a scribe is a welcome step toward inclusivity and equality.

• Ritti Ramya, Law College Dehradun, Dehradun, (VIII Semester)

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