This article has been written by Nitin Kumar and edited by Shashwat Kaushik. This article is a critical analysis of the case of Vikash Kumar vs. Union Public Service Commission and Others (2021).
Table of Contents
Before we begin with our article, we should understand some major terms:
Disability- It is a condition of the body or mind (physical or mental) that limits a person’s movement, senses, or activities.
Scribe- He/She is a person who writes or word processes a student’s dictated answer in exams. Generally, students who have some impairment restricting the ability to hand-write, or type may require a Scribe (sometimes referred to as an ‘Amanunesis’)
Scribe candidate- When a candidate takes a test and is not able to write or comprehend the question sheet due to Dyslexia, visual impairment or inability to write because of loss of fingers or hands, such candidates are given the option of hiring an Amanunesis, also known as a transcriber or scribe, to assist him, who writes down what the student dictates.
Reasonable accommodation- It is mainly making adjustments so that equal and fair opportunities could be given to a disabled person to qualify for the work or a job assigned to him or to enjoy equal employment opportunities.
Everyone is born unique in this world, having abilities and capabilities and some have disabilities as well. Disability can be physical or mental and in some cases, it can be both. Our Constitution provides equality for all to fulfil their dreams of becoming good human beings and better citizens who can contribute to the Nation at their best.
Those who suffer some kind of physical disability should be kept on par with physically fit people by providing them with specific allowances or any aid or help if needed to support them in overcoming the obstructions that may come their way while they are performing at their best in their academics. In one case titled Vikash Kumar vs. Union Public Service Commission and Others (2021), the appellant was suffering from writer’s cramp and wanted a Scribe but was denied the services of a scribe.
Facts of the case
In August 2016, the appellant obtained his MBBS degree from the Jawaharlal Nehru Institute of Post-Graduate Medical Institution (JIPMER). Later, the Appellant undertook the Civil Service Examination (CSE) in 2017. He requested permission to use a scribe, but the Department of Personnel and Training issued CSE Rules 2018, which stated that a candidate cannot use a scribe unless he or she is blind, has a locomotive disability, has cerebral palsy, or suffers from at least 40% physical impairment. The appellant’s application for a scribe for CSE 2018 was denied because his impairment was less than 40%. The handicap of the appellant did not fulfil the benchmark criterion.
Being aggrieved against the impugned rejection order, the appellant filed a case putting his grievance before the Central Administrative Tribunal. Meanwhile, the Appellant also applied for a disability certificate from Ram Manohar Lohia Hospital. The Tribunal allowed the appellant to attend the examination with a scribe in the interim order passed by them. The results of the preliminary examination were declared but the results of the appellant’s examination were not published. The Tribunal later dismissed the interim order because the court did not receive any disability certificates from Ram Manohar Lohia Hospital.
The appellant filed a case with the Central Administrative Tribunal (CAT) after feeling dissatisfied with the Tribunal’s rejection order. Meanwhile, the appellant obtained a disability certificate from Ram Manohar Lohia Hospital. In its interim judgement, the Tribunal authorised the appellant to attend the examination with a scribe. The preliminary examination results were announced, but the appellant’s results were not. The Tribunal eventually invalidated the interim decision because the court had not secured an impairment certificate from Ram Manohar Lohia Hospital.
The Tribunal also stated that the appellant claimed a Scribe, neither for his CSE 2017 examination nor for his MBBS graduation examination. The Tribunal also rejected the certificate of disability issued by the National Institute of Mental Health and Neuroscience (NIMHANS) in Bangalore because it failed to mention the extent of the disability. The appellant filed a Writ Petition before the High Court of Delhi. The appellant also produced a medical disability certificate from NIMHANS Bangalore, which confirms his disability. The High Court of Delhi upheld the order passed by the Trial Court, reasoning that the appellant did not clear the preliminary examinations of CSE 2018, for which he was provided with a Scribe. Aggrieved by the Order, the Appellant decided to file an appeal to the Supreme Court of India.
In addition, the Tribunal noted that the appellant did not request a Scribe for his Civil Service Examination 2017 exam or his MBBS graduation examination. The Tribunal also rejected the National Institute of Mental Health and Neuroscience (NIMHANS) Bangalore certificate of disability as the amount of disability was not specified. The appellant filed a writ petition in the High Court of Delhi. Additionally, the appellant presented a medical disability certificate from NIMHANS Bangalore, confirming his status. The High Court of Delhi upheld the Trial Court’s ruling, citing the appellant’s failure to pass the CSE 2018 preliminary exams, for which he had been assigned a scribe. Aggrieved by the Order, the appellant decided to file an appeal with the Supreme Court of India.
Issues involved in the case
The issues involved in the case are:
- If the person does not qualify for the benchmark percentage set in CSE Rules 2018, will be denied the use of a scribe even if he is suffering from physical incapabilities?
- Whether or not the CSE Rules 2018 contravene Section 20(2) of the Rights of Persons with Disabilities Act 2016, which permits a reasonable accommodation to those who have physical disabilities?
Arguments of the appellant
The appellant’s counsel stated that the appellant falls within the category of Section 2(S)(3) of the RPWD Act, 2016, which defines a “person with a disability”.
The appellant’s counsel further stated that the writer’s cramp or dysgraphia, is a physical disability and for proving the same, he referred to Section 2(d)(4) of Schedule of the RPwD Act 2016, in which a list is given for disabilities that are called “special learning disabilities,” and the said list contains dysgraphia.
Ld. Counsel of the appellant further submitted that the SCE Rules 2018 are violative of Section 20(5) of the RPwD Act 2016 as they only provide “reasonable accommodation” to the candidates who are physically disabled. Only candidates who are blind, have a locomotive disability, suffer from cerebral palsy, or have a physical disability of more than 40 percent can get scribes. But it fails to provide accommodation to those who are physically disabled but are excluded from the exceptions mentioned by the SCE Rules 2018.
Ld. Counsel for the appellant has also contended that the SCE Rules 2018 only provide scribes to a limited number of people who are physically disabled, hence violating Article 14 and Article 16(1) of the Constitution of India.
Ld. Counsel for the appellant has also given examples of other academic institutes like Delhi University and the Institute of Chartered Accountants of India (ICAI) that recognise the writer’s cramp as a physical disability and provide scribes for the candidates or students who are suffering from such a disability.
Arguments of the defendant
Ld. Counsel for the defendant contended that every person who has physical disabilities above the benchmark as prescribed has to prove the same through a medical certificate that is issued by a Chief Medical Officer (CMO) of a Government Health Care Institution. A medical certificate that is issued must mention the disability of the candidate and should also mention the need for a scribe. As far as the present case is concerned, the appellant stated himself to be a benchmark candidate but no certificate was submitted with regard to the same.
Ld. Counsel of the defendant further contended that the Ministry of Social Justice and Empowerment (MSJE) has given the opinion that the writer’s cramp or dysgraphia, is not a disability. It only creates difficulty in writing.
Ld. Counsel for the defendant has also submitted that the term writer’s cramp is not included in the Schedule of the RPwD Act. Ld. Counsel further submitted that as the examination for Civil Services is a competitive examination, the board must act as a platform to provide every candidate with a fair and equal chance to succeed. If the Rules for allowing scribes were made more lenient, then candidates who do not actually need a scribe would have an unfair advantage over those who do.
Judgement of the Court
The Apex Court, while setting aside the judgement and order passed by the High Court, allowed the appeal at hand. This was the further opinion of the Supreme Court that the criteria adopted for “benchmark disability” should not cause any obstruction in denying a scribe when a person/candidate is suffering from a disability. The aim of bringing the RPwD Act 2016 into existence was to give an equal and fair opportunity to all persons, even if they are suffering from natural disabilities. The main aim of “reasonable accommodation” was to provide prospects for the disability of those who are not covered by “benchmark disability” and to bring them to parity with non-disabled candidates. The Supreme Court has also laid stress upon the two-judge bench judgements in V. Surender Mohan vs. State of Tamil Nadu (2019), a case in which “reasonable accommodation” was provided to the candidate with the disability even though he did not fulfil the criteria provided under “benchmark disability”.
Further, in the latest WP filed before the Supreme Court in Dhananjay Kumar vs. Uttrakhand Public Service Commission and Anr. (2013), in which case also the petitioner was suffering from writer’s cramp (task-specific focal dystonia) and requested for providing a scribe, the Supreme Court issued an ad-interim direction to provide a scribe to the petitioner for giving an examination while referring to the principles laid down in the present case, i.e., Vikash Kumar vs. Union Public Service Commission & Ors. (2021).
The Apex Court basically laid stress on the concept of “reasonable accommodation”. Equal opportunity is to be given to each and every candidate, taking into account their disability. It is always kept in mind that the person who is in a wheelchair may not need a scribe but the person whose fingers are not working properly does. The decision passed by the Apex Court helps in bringing equality of opportunity to the appellant, who was suffering from writer’s cramp and provided the assessment to a scribe.