ROHIT VISHNU GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Maharashtra Public Service Commission allows the facility of a scribe for the candidate with a disability during the examination on the condition that the education qualification of the scribe should be one step below the minimum qualification prescribed for the post the candidate has applied for. The Commission has rejected the request of the Petitioner for a scribe of his choice, as the qualification of his scribe is Second Year of Bachelor of Science, which is higher than Higher Secondary, the 12th Standard, and thus not one step below the graduate degree which is the minimum qualification for the post. The Commission advised the Petitioner to choose another scribe with requisite qualifications and has also offered to appoint a scribe from its panel. Not satisfied, the Petitioner sought a direction to the Commission to permit the scribe selected by him to assist him in the examination.

(2.) The Rights of Persons with Disabilities Act enacted in 2016 brought about several reforms such as the expansion of the definition and the classification of disabilities. A person with benchmark disability is defined as a person with not less than 40% of a specified disability where a specified disability has not been defined in measurable terms and includes a person with a disability where a specified disability has been defined in measurable terms, as certified by the certifying authority. The Act of 2016 recognises that persons with disabilities have high support needs and that they require intensive support from others for their daily activities. This Act was passed to give effect to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India has ratified. Article 2 of UNCRPD refers to the concept of Reasonable Accommodation meaning necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden. Where needed in a particular case to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The Act of 2016 has incorporated this principle. Sec. 3 of the Act of 2016 lays down that the appropriate Government shall ensure that persons with disabilities enjoy the right to equality, life with dignity, and respect for their integrity equally with others. The Government shall take steps to utilize the capacity of persons with disabilities by providing an appropriate environment. No person with a disability shall be discriminated against on the grounds of disability unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. No person shall be deprived of his or her personal liberty only on the grounds of disability. The Government is required to take necessary steps to ensure reasonable accommodation for persons with disabilities. Sec. 2(y) defines "reasonable accommodation" to mean necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure that persons with disabilities the enjoyment or exercise of rights equally with others. The facility of providing a scribe is relatable to the concept of reasonable accommodation.

(3.) The issue of providing a scribe with persons with disabilities during the competitive examination was considered in extentio by the Hon'ble Supreme Court in the case of Vikash Kumar v. Union Public Service Commission (2021) 5 SCC 370. The Supreme Court, upon reviewing the law on the subject, held that that the facility of a scribe is not limited solely to those individuals who meet the criteria for benchmark disabilities. The Supreme Court laid that persons with disabilities, even those who do not reach the 40% threshold might require reasonable accommodation to ensure their equal participation in competitive examinations. The Supreme Court expanded the scope of support available to candidates acknowledging that the nature and severity of a disability could significantly hinder the ability to write, thereby necessitating the provision of a scribe. The Supreme Court directed the Union Government, specifically to the Ministry of Social Justice and Empowerment mandating the formulation of comprehensive guidelines. It was directed that these guidelines should govern the provision of scribes to persons with disabilities under the Act of 2016, particularly for those whose disabilities create barriers to their ability to write during examinations. The Court emphasised the importance of these guidelines to be inclusive, ensuring that candidates with genuine needs are provided with the necessary assistance.