In Re: Recruitment of Visually Impaired in Judicial Services vs -

Held: Visually impaired candidates cannot be said to be ‘not suitable’ for judicial service – They are eligible to participate in selection for posts in judicial service – Amendment made in r.6A of the 1994 Rules falls foul of the Constitution, hence, struck down to the extent it does not include visually impaired persons who are educationally qualified for the post to apply therefor – r.6A is against the guarantee of substantive equality embodied in the RPwD Act, 2016 and the principle of reasonable accommodation therein – The impugned rule based on the medical report of a doctor cannot have any place in the disability jurisprudence that is ever evolving – Such conclusions based merely on a clinical assessment of disability, innocent of the principle of reasonable accommodation are not a fair and proper assessment of the capability of judicial officers with disabilities while participating in the selection to the post of judicial officers – Once a person has been permitted to the degree of law course, all other opportunities, whether in the form of practice as well as appointments, assignments whether public or private, would automatically make them eligible to participate for selection to the same – The principle of legitimate expectation also stands attracted to this case as part of the aspect of non-arbitrariness while furthering the equality doctrine – India is a signatory to United Nations Convention on the Rights of Persons with Disabilities and hence, under an obligation to fulfil this object of inclusive equality. [Paras 42, 68(i)] Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 – 2023 Amendment – r.7 – Principle of indirect discrimination – The amendment proposed to substitute r.7 prescribing the additional requirement, to appear in the preliminary examination of the MP Judicial Service examination, of either a three-year practice period or securing an aggregate score of 70% in the first attempt – Challenge to the amendment and the consequential advertisement dtd.17.11.2023 issued by the High Court of MP – Proviso to r.7, if violates the equality doctrine and the principle of reasonable accommodation:

Held: r.7 to the extent of prescribing additional requirement of either a three-year practice period or securing an aggregate score of 70% in the first attempt violates the equality doctrine and the principle of reasonable accommodation – It is struck down in its application to differently abled persons who have the requisite educational qualifications for applying to the posts under judicial service – Applying the test of indirect discrimination, the ease of practice as well as the securing of marks cannot be said to be an equal condition to both classes of citizens, viz., disabled and able-bodied lawyers as the atmosphere in which they operate are not the same – r.7 will be applicable to the PwD candidates insofar as it prescribes the educational and other qualifications as eligibility criteria including the minimum aggregate score of 70% (with relaxation as may be determined like in the case of SC/ST candidates), but without the requirement of either that it should be in the first attempt or that they should have three years’ practice – Impugned order dtd. 01.04.2024 passed by the High Court and the consequential notification dtd.17.11.2023 issued by the High Court of Madhya Pradesh, set aside as against the PwD candidates – The appellant-‘AY’ in SLP (C) No.12179 of 2024 and similarly placed persons are entitled to be considered for participating in the selection process in the light of this decision. [Paras 46, 67.1(iii), 68(ii)] Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 – 2023 Amendment – r.19 – Relaxation in cut-off marks – Relaxation in assessing the suitability of PwD candidates when adequate PwD candidates are not available, after selection in their respective category – Permissibility:

Held: Relaxation of minimum marks is permissible in law – PwDs are to be identified as a separate class in itself and therefore, some kind of benefits has to be extended to them with respect to eligibility which was extended similarly to other vertical reserved class – Relaxation in marks can be given to PwD candidates – This relaxation in minimum marks does not dilute the efficiency in administration – In view of this and the 1994 Rules as amended on 22.06.2023 which empowers the High Court with the power to relax, relaxation of marks in interview is possible for PwD candidates – Furthermore, the Office Memorandum No. 36035/02/2017-Estt (Res) [Reservation for Persons with Benchmark Disabilities] dated 15.01.2018 issued by Ministry of Personal, Public Grievances & Pensions, Department of Personnel & Training also provides for relaxation in standards of suitability – Therefore, relaxation in minimum cut-off marks is permissible, especially when there is a specific power of relaxation available to the appointing authority – Relaxation can be done in assessing suitability of candidates when enough PwD are not available after selection in their respective category, in the light of existing Rules and Official Circulars and executive orders in this regard, as in the present case. [Paras 52, 59, 62, 67.1(iv)] Judicial Services – Judicial Services Examination – Visually-impaired candidates – Separate cut-off for – Rights of Persons with Disabilities Act, 2016 – Rajasthan Judicial Service Rules, 2010 – rr.10, 41:

Held: A separate cut-off is to be maintained and selection made accordingly for visually-impaired candidates – Further, maintaining and operating a separate cut-off list is mandatory for each category, which includes PwD category as well – When the Rules considered the PwD as a separate category and provided them with reservations, it is indispensable on the part of the authorities concerned to declare separate cut-off marks for PwD category at each stage to ensure that those similarly placed candidates are adequately represented in the service fulfilling the very purpose of reservation – Non-disclosure of cut-off marks leads to a situation where such candidates may not be adequately represented in the judicial service, which is against the provisions of the RPwD Act, 2016 – Writ petitioners in WP (C) Nos. 484 and 494 of 2024 contending that separate cut-off was not applied in the Rajasthan Judicial Service Preliminary Examinations and consequently were not selected for the main examination, are entitled to be considered in the light of this decision in the next recruitment, if they so apply to the post notified along with the post unfilled now and carried forward to the next recruitment by maintaining a separate cut off and merit list for PwDs – Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994. [Paras 63.3, 67.1(v), (vi), 68(iv)]. Persons with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD), if distinct:

Held: For the purpose of rights and entitlements of persons with disabilities, particularly in employment and more specifically in respect of the issues covered in the present judgment, there is no distinction between Persons with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD) – Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 – Judicial Services. [Paras 63.3, 67.1(v), (vi)]. Disability Rights – Constitution of India – Articles 21, 41 – Right to dignity u/Article 21 – Principle of reasonable accommodation – Rights of Persons with Disabilities Act, 2016 – Rights-based approach – Role of Constitutional Courts:

Held: Reasonable accommodation is not a discretionary measure but a fundamental right integral to achieving substantive equality for PwD, forming part of the right to dignity as guaranteed u/Article 21 of the Constitution – The 73rd and 74th Amendments of the Constitution of India made it a Constitutional obligation for the State to make provisions for safeguarding the interest of the weaker section of the society, including ‘handicapped and mentally retarded’ – State has an obligation to apply the Directive Principles of securing a social order in promotion of the welfare of the people – Article 41 of the Constitution is in the nature of a Directive Principle and it imposes a duty on the State to make an effective provision, inter alia, for public assistance to disabled persons – RPwD Act, 2016 reveals that the principle of reasonable accommodation is a concept that not only relates to affording equal opportunity to the PwD but also it goes further as to ensuring the dignity of the individual by driving home the message that the assessment of a person’s suitability, capacity and capability is not to be tested and measured by medical or clinical assessment of the same but must be assessed after providing reasonable accommodation and an enabling atmosphere – Significance of judgement in Vikash Kumar case, stated – Constitution of India is blind to the differences between able-bodied and differently abled citizens in matters of providing equal opportunity to all citizens in all spheres of life, including employment, and envisages equality and non-discrimination – This principle is to be enforced by the Constitutional Courts by adopting a rights-based approach providing an enabling environment and atmosphere and ensuring that PwD are provided with equal opportunities, and accommodation that they need and deserve in order to make sure that they can lead their lives with dignity, realising their fullest potential without facing discrimination. [Paras 3, 40, 41]

Disability Rights – Rights of Persons with Disabilities Act, 2016, a ‘super-statute’ – Scheme, discussed – Elevating right against disability based discrimination to a fundamental right – Need for: Held: RPwD Act, 2016 has acquired the status equal to that of a ‘super-statute’ and hence, contains the ingredients of a quasi-constitutional law – The RPwD Act, 2016 marks a significant legislative shift by expanding the rights of PwDs and broadening the recognized categories of disabilities – It ensures equality and non-discrimination, mandates reasonable accommodation, and prohibits barriers to community life, education, employment, and access to justice – It also provides for social security measures, inclusive education, reservations in higher education and employment, and protection from cruelty and exploitation – It also imposes clear responsibilities on the State and other stakeholders in this regard – The right against disability-based discrimination, as recognized in the RPwD Act 2016, needs to be seen of the same stature as a fundamental right, ensuring that no candidate is denied consideration solely on account of their disability. [Paras 36, 67] Judicial Services – Rights of Persons with Disabilities Act, 2016 – Principle of reasonable accommodation – Substantive equality:

Held: The principle of reasonable accommodation as enshrined in international conventions, established jurisprudence, and the RPwD Act, 2016, mandate that accommodations be provided to PwDs as a prerequisite to assessing their eligibility – Any indirect discrimination resulting in the exclusion of PwDs, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality – The commitment to ensuring equal opportunity necessitates a structured and inclusive approach, where merit is evaluated with due regard to the reasonable accommodations required, fostering judicial appointments that truly reflect the principles of fairness and justice – Disability Rights – International Disability Jurisprudence/International Conventions. [Para 67] Rights of Persons with Disabilities Act, 2016 – s.34 – Challenge to the notification dtd.18.02.2023 in so far as it related to non-selection of the appellant in SLP(C) No.7683 of 2024 on the vacant post of Physically Handicapped Quota under the Unreserved category on the post of Civil Judge, Junior Division (Entry Level) – High Court dismissed the writ petition holding that the benefit u/s.34 and Clause 11 of the Office Memorandum dated 15.01.2018 cannot be granted to the appellant – Correctness: Held: Impugned order and the notification dated 18.02.2023 are set aside as far as the appellant ‘AS’ and similarly placed persons are concerned – Thus, the appellant and similarly placed persons who had participated in the selection process are entitled to be considered in the light of this decision and they may be appointed, if otherwise eligible in the vacant posts after applying applicable relaxation as provided for in the executive orders. [Para 68 (iii)] Constitution of India – Article 15 – United Nations Convention on the Rights of Persons with Disabilities – Rights of Persons with Disabilities Act, 2016 – ss.32, 34:

Held: While Article 15 of the Constitution bars the State from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth, or any of them, the specific ground of ‘disability’ is conspicuous by its absence – The fact that ‘disability’ as a ground is not specifically stated under Article 15 of the Constitution, would not mean that the same is not part of the constitutional obligations of the State – ss.32 and section 34, RPwD Act, 2016 indicates that similar to the State’s obligations to provide for special protection including in the form of reservation for socially and educationally backward classes in educational institutions as well as in employment as stated in Articles 15 and 16 of the Constitution, the State has taken up the obligation of providing similar protection including reservation in respect of PwD – However, now an anti-discrimination clause ought to be included in the Constitution with a specific provision that the State shall not discriminate on the grounds of mental or physical disability in line with the principles as stated in the RPwD Act, 2016 – Disability Rights. [Paras 34, 35] Disability Rights – International Disability Jurisprudence – Discussed – United Nations Convention on the Rights of Persons with Disabilities, 2007. [Paras 37, 38] Disability Rights – Judicial Services – Distinguished/accomplished lawyers and judges with disabilities – Exemplary achievements of, enumerated – Reasonable accommodations for PwD, necessity. [Para 65]