Avni Prakash vs National Testing Agency (Nta) & Ors.

Object of the 2016 Act – Held: Effective participation of the students with disabilities in the society is the beneficial object of the legislation – Safeguards provided by the law must be duly enforced and any breach of entitlement must be answerable at law – Responsibility and power without accountability are anathema to the Constitution.

ss. 2(r), (s) – Persons with disabilities and Persons with benchmark disabilities – Distinction between – Stated.

s. 2(m) – Inclusive Education – Right to Inclusive Education – Held: Inclusive education is indispensable for ensuring universal and non-discriminatory access to education – Convention on Rights of Persons with Disabilities recognises that inclusive education systems must be put in place for a meaningful realisation of the right to education for PwD – Thus, a right to education is essentially a right to inclusive education – 2016 Act provides statutory backing to the principle of inclusive education – Right to inclusive education is realised through the provision of reasonable accommodation, denial of which to a PwD amounts to discrimination – On facts, the appellant was denied her entitlement to reasonable accommodation and the State failed to fulfil its positive duty of protecting her right to inclusive education.

Disposing of the appeal, the Court

HELD: 1. The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied. The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. The first respondent is directed to consider what steps could be taken to rectify the injustice within the stipulated period. Further, it should take necessary consequential measures under intimation to the Directorate General of Health Service. In the future, the first respondent should ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the Rights of Persons with Disability Act 2016 are clarified in the NEET Bulletin by removing ambiguity. Having due regard to the decision of this Court in Vikash Kumar’s case and the statutory provisions contained in the 2016 Act, facilities which are provided by the law to PwD would not be constricted by reading in the higher threshold prescribed for PwBD. It is clarified that for the purpose of availing of the reservation under Section 32 of the Act or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply. The second respondent was ignorant about the facilities to which the appellant was entitled. There was an evident confusion between the authorities working at the first respondent as well. 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. [Para 57][935-C-H; 936-A-B]

2. Dysgraphia is contemplated as a specified disability in Entry 2(a) of the Schedule to the Act. Dysgraphia causes impaired handwriting and demonstrates inconsistent handwriting, poor spelling and spacing, transcription difficulties and difficulties in coherence. Through the appellant’s certificates, it is evident that she is a PwBD having dysgraphia, for the purposes of Section 2(r) of the RPwD Act 2016. [Para 20][914-G; 915-D]

3.1 The first respondent, as a testing agency, has been assigned specific functions which are clarified in the NEET Bulletin 2021. The instant case demonstrates that the appellant who suffers from dysgraphia with a disability of 40 per cent has suffered a tragedy of errors in the process leading up to admissions for the graduate medical courses in 2021, over which she had no control. The first respondent, was duty-bound to comply with the Guidelines on Written Examination, prescribed by the Ministry of Social Justice and Empowerment. The grievance of the appellant is that she was deprived of the compensatory additional one hour for attempting the examination, simply because the second respondent (the designated centre) was unaware of the rights of PwD candidates and the corresponding obligations on the second respondent. This state of affairs reflects the responsibility of the first respondent to ensure that personnel at examination centres are trained and provided with clear guidelines for the implementation of the provisions made for PwD. In the absence of adequate training, rights conferred on candidates with “specified disabilities” by Parliament, are set at nought. [Paras 30, 31][920-F-H; 921-A-B]

3.2 On 11 October 2021, the first respondent’s counsel informed the High Court that the appellant was not entitled to get an additional one hour of compensatory time because of a failure to obtain a disability certificate in Appendix VIII-A from a centre designated in Appendix VIII-B. In the face of this statement, the counsel for the appellant agreed to produce a certificate from an authorized agency in Appendix VIII-B of the NEET Bulletin 2021, within a week. The High Court accordingly directed the first respondent to consider the certificate within a week of its production by the appellant. It is unfortunate that the first respondent issued such instructions to its counsel. The statement of the first respondent before the High Court on 11 October 2021 was plainly contrary to the provisions of the NEET Bulletin 2021. Para 5.4(b) of the NEET Bulletin 2021 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. If this were not so, there is no purpose in requiring the candidate to disclose the rank which is obtained in the NEET. It is as clear from paras 5.3.1, 5.3.3, 5.3.4 and 5.3.5 that a certificate issued by a designated centre under Appendix VIII-B is to be considered only at the stage of admission. Yet, 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. [Paras 32, 33][921-C-H]

3.3 The expression ‘person with benchmark disability’ is defined in Section 2(r). The concept of benchmark disabilities is thus specifically with reference to the provisions of Chapter VI of the RPwD Act 2016. In contrast with the definition in Section 2(r), the expression ‘person with disability’ is defined in Section 2(s). The rights and entitlements conferred upon PwD are specified in Chapter II. Among those rights, Section 3 embodies the duty of the appropriate government to ensure that PwD enjoy the right to equality, a life with dignity and respect for their integrity equally with others. Sub-section (5) of Section 3 requires the appropriate government to take necessary steps to ensure reasonable accommodation for PwD. Section 4 requires the appropriate government and all local authorities to take measures to ensure that women and children with disabilities enjoy rights equal with others. These rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights. 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), 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. It is evident that despite the clarification of the position in law in Vikash Kumar’s case, the law continues to be violated and NTA has continued to restrict the grant of facilities only to PwBD. By way of abundant caution, it is reiterated that the facility of reservation in terms of Section 32 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. [Paras 35, 36, 37][922-E, F-G; 923-A-B, D-G; 924-A, H; 925-A-B]

4.1 Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education. The Convention on Rights of Persons with Disabilities recognises that inclusive education systems must be put in place for a meaningful realisation of the right to education for PwD. Thus, a right to education is essentially a right to inclusive education. The RPwD Act 2016 provides statutory backing to the principle of inclusive education. Section 2(m) defines inclusive education. [Para 38][925-C-D]

4.2 The RPwD Act 2016 contains provisions mandating reasonable accommodation. The expression “reasonable accommodation” is defined in Section 2(y). The right to inclusive education is realised through the provision of reasonable accommodation. It has been emphasised that reasonable accommodation is at the heart of the principle of equality and non-discrimination espoused under the RPwD Act 2016. The denial of reasonable accommodation to a PwD amounts to discrimination. It is the positive obligation of the State to create the necessary conditions to facilitate the equal participation of disabled persons in society. [Para 41][926-B, C-E]

4.3 The appellant was denied her entitlement to reasonable accommodation and the State failed to fulfil its positive duty of protecting her right to inclusive education. The Guidelines for Written Examination dated 29 August 2018 issued as an Office Memorandum by the Ministry of Social Justice and Empowerment, hold the field insofar as the written examinations for PwD candidates are concerned. [Para 42][926-G-H; 927-A]

4.4 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. There was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the first respondent. The confusion has also arisen because of the manner in which NEET Bulletin 2021 has been drafted. A clear-eyed information bulletin must provide a distinction between the rights that are available to PwD candidates at the stage of the examination and the rights which are available in terms of reservation after the results of the NEET are declared. 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. This injustice was compounded by the manner in which the proceedings took place before the High Court where the instructions given to the counsel for the first respondent were in the teeth of the rights and entitlements available in terms of the Guidelines for Written Examination dated

29 August 2018 and para 5.4(b) of the NEET Bulletin 2021. The Guidelines for Written Examination hold the field for all examinations attempted by PwDs. As a matter of fact, it would appear that para 5.4(b) of the NEET Bulletin 2021 seeks to enforce and implement this requirement. As a consequence of these compounding errors, the appellant has suffered a grave injustice. [Paras 43, 44][928-C-H]

5.1 The line of submissions by the first respondent seems to suggest that besides the provisions under Para 5.3 and 5.4 of the NEET Bulletin 2021, it proposes to issue further guidelines to stakeholders, especially to candidates; invigilators; centre supervisors; observers; and city coordinators. However, this does not address the issue at hand, which is the steps that the first respondent must take to deal with cases such as that of the appellant where the student has been made to suffer. This suffering was, firstly, a consequence of inadequate knowledge at the designated centre (the second respondent), in regard to the facilities available to PwD students; and secondly, by an element of ambiguity in the instructions framed in the NEET Bulletin 2021. [Para 45][929-A-C]

5.2 One way of looking at the matter, as the first respondent would have the Court do, is to accept that in a competitive entrance examination such as the NEET, a large body of candidates appears across the country. According to the viewpoint espoused by the first respondent, individual cases of prejudice caused by an improper application of the norms governing the examination constitute an acceptable, though unfortunate, consequence. The other way of looking at the problem is that while the first respondent must utilise the experience gained in conducting the NEET process to proactively take steps to fill up deficiencies, the examination process must continue to account for the need to rectify injustice caused to a student, who played no role in causing such injustice. The number of cases where such injustices take place maybe a few or more than that; but it cannot be ignored that for a student who is made to suffer, the consequence is indeed serious. The entire course of a career depends upon the proper conduct of the NEET and, the application of a binding norm prescribed by the Ministry of Social Justice and Empowerment for the benefit of students suffering from disabilities. An authority bound by the dicta of law and the Constitution, cannot throw up its hands in despair, instead of attempting to remedy the injustice which is caused to a student. A judge cannot ignore that behind the statistics is a human face, reflecting the aspirations, joy and tears of a student and her family. [Para 46][929-C-H]

5.3 In the instant case, the appellant does not claim misfeasance on the part of the first respondent but plain and simple negligence in complying with the rights and entitlements provided to PwDs under the RPwD Act 2016. For effective participation of the students with disabilities in the society, which undoubtedly is the salutary object of the legislation, the safeguards which are provided by the law must be duly enforced and any breach of entitlement must be answerable at law. Responsibility and power without accountability are an anathema to our Constitution. [Para 47][929-H; 930-A-B]

5.4 The first respondent is justified in taking the stance 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 the decision in Vaishnavi Vijay’s case. 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. At the same time, the first respondent must factor in the possibility of such errors occurring in the process of conducting the NEET. The manner in which the first respondent deals with cases of serious prejudice, as in the instant case, has to be decided by it as an expert agency. [Paras 48, 50][930-B-C; 932-B-D]

5.5 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. The first respondent took certain steps as noted in Vaishnavi Vijay’s case. Similarly, in the instant case, this Court is of the categorical view that the first respondent cannot shirk or abrogate its responsibility to rectify the injustice which has been caused to the appellant. The first respondent may consider extrapolation of the marks awarded to the appellant or grant compensatory marks. Similar to the steps in Vaishnavi Vijay’s case, the first respondent could also consider adopting a ‘no negative marks’ scheme. The first respondent is not restricted to only the above options and will leave the decision on the modalities of remedying the injustice caused to the appellant to the first respondent. The injustice which has resulted is clearly due to a breach in observing the entitlements due to the appellant under the RPwD Act 2016. [Para 51][932-D-G]

5.6 The given statement indicates that the appellant has secured an All India Rank of 1721 out of 2684 candidates qualified in the PwD category. In relation to the State of Maharashtra, the appellant has secured rank 249 out of 390 candidates in the PwD category. The first respondent has stated that approximately

15.4 lakh candidates appeared at the NEET (UG) 2021 on

12 September 2021 for which the result was declared on

1 November 2021 and the All India Rank was forwarded on

9 November 2021 to the Ministry of Health and Family Welfare, Government of India to conduct counselling for admission. It was submitted that alteration of the result at this stage would prejudicially affect other candidates who are ranked above the appellant. In essence, the above submissions boils down to the first respondent informing the Court that in an examination of such large proportions where over 16 lakh students registered and over 15 lakh students appeared, it would not be possible to undo the injustice which has been done to a single candidate. The first respondent must remember that all authority under the law is subject to responsibility, and above all, to a sense of accountability. The first respondent is governed by the rule of law and by the constitutional requirement of observing fairness. Behind the abstract number of ‘15 lakh students’ lie human lives that can be altered due to the inadvertent, yet significant errors of the first respondent. [Paras 53, 54][934-C-G]

5.7 The first respondent, as an examining body, was bound to scrupulously enforce the Guidelines for Written Examinations which provides for specific relaxations. 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 all authority under the law is subject to responsibility, and above all, to a sense of accountability. 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. [Paras 55, 56] [934-G-H; 935-A, B-C]

National Testing Agency v. Vaishnavi Vijay Bhopale SLP (C) 17027 of 2021; Vikash Kumar v. Union Public Service Commission (2021) 5 SCC 370 – relied on. Vidhi Himmat Katariya v. State of Gujarat (2019) 10 SCC 20 : [2019] 12 SCR 821 – referred to.