Karnataka High Court
Sri. Udayanandan G S vs The Government Of Karnataka on 24 June, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:23107
WP No. 15444 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 15444 OF 2024 (GM-RES)
BETWEEN:
SRI. UDAYANANDAN G S
S/O SEENAPPA REDDY
AGED ABOUT 31 YEARS
NO.2158, 4TH MAIN RAOD
3RD CROSS, 2ND BLOCK
JAMBUSAVARI DINNE, J P NAGAR, 8TH PHASE, BENGALURU -
560 083.
...PETITIONER
(BY SRI. C R GOPALA SWAMY, SR. COUNSEL FOR
SRI. BHARGAV G, ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF PERSONAL AND ADMINISTRATIVE
REFORSM
REP. BY ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA, BANGALORE-560001.
2. KARNATAKA PUBLIC SERVICE COMMISSION
UDHYOGA SOUDHA, KARNATAKA PARK HOUSE ROAD, REP.
BY ITS SECRETARY, BANGALORE-560001.
Digitally
signed by
Vandana S 3. THE ASSISTANT SECRETARY EXAMINATIO9N BRANCH-1
KARNATAKA PUBLIC SERVICE COMMISSION
Location:
HIGH COURT UDYAOGASOUDHA, PARK HOUSE ROAD,
OF BENGALURU-560001.
KARNATAKA
...RESPONDENTS
(BY SRI. SUDEV HEGDE, AGA FOR R1;
SRI. SAPPANNAVAR, ADVOCATE FOR R2;
SRI. K M PRAKASH FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUION OF INDIA PRAYING TO QUASHING ANNEXURE-A VIDE
ENDORSEMENT DATED 27/05/2024 NO.PSC 88E (1)/2024-25 ISSUED BY
THE RESPONDENT NO.3 AS ILLEGAL AND UNSUSTAINABLE AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC:23107
WP No. 15444 of 2024
ORDER
In this petition, petitioner seeks the following reliefs:
"i. Issue Writ of Certiorari or any other Writ or order quashing Annexure - A Vide endorsement dated 27.05.2024 No.PSC 88E (1)/2024-25 issued by the Respondent No.3 as illegal and unsustainable.
ii. Issue Writ of Mandamus or any other Writ or order directing the Respondents to provide scribe to the Petitioner for ensuing KPSC examination for Gazetted Probationers - 2023-24 scheduled to be held on 21.07.2024 and onwards or in alternate permit the petitioner to arrange the scribe of his own for the said examination.
iii. Pass such other Writ/s or Order/s, which are deemed to be fit in the nature and circumstances of the case, in the interest of justice and equity."
2. Heard learned Senior counsel for the petitioner and perused the material.
3. In addition to re-iterating the various contentions urged in the memorandum of petition and referring to the material on record, learned Senior counsel for the petitioner invited my attention to the impugned endorsement at Annexure - A dated 27.05.2024 in order to point out that this despite the petitioner suffering from a dis- ability known as "Writer's Cramp" which has been recognized as -3- NC: 2024:KHC:23107 WP No. 15444 of 2024 one of the disabilities medically known as Task Specific Dystonia which prevents him from effectively writing the exams conducted by the respondent Nos.2 & 3, the respondent No.2 has issued impugned endorsement rejecting the request of the petitioner by passing the impugned non-speaking and un-reasoned endorsement without assigning any reasons as to why his request for providing scribe has been rejected. In this context, learned Senior counsel for the petitioner invited my attention to the judgment of the Apex Court in the case of Vikash Kumar Vs UPSC and Others, AIR 2021 SC 2447 in order to contend that the right of the person under Disabilities Act, 2016 would stand extended to persons suffering from "Writer's Cramp" also and in the said judgment, the candidate was directed to be provided a scribe to write Civil Services Examination as in the instant case. It is therefore, submitted that the impugned endorsement deserves to be set aside and the scribe directed to be provided in favour of the petitioner to write the ensuing exams scheduled to be conducted on 21.07.2024 onwards.
4. Per contra, learned AGA for respondent No.1 and learned counsel for respondent Nos.2 and 3 invited my attention to the -4- NC: 2024:KHC:23107 WP No. 15444 of 2024 proceedings of the State Government dated 11.02.2021 wherein it is been specifically stated that a person suffering from "Writer's Cramp" is not covered by the said notification and as such the question of providing a scribe to the petitioner would not arise. It is therefore submitted that there is no merit in the petition and the same is liable to be dismissed.
5. As rightly contended by the learned Senior counsel for the petitioner in Vikash Kumar's case supra, under identical circumstances while dealing with the rights of a candidate appearing for Civil Services examination, Apex Court held as under:
"A. Factual background
1. A citizen who suffers from a writer's cramp has travelled to this Court. The grievance is that he was denied a scribe in the civil services' examination ("CSE"). The case has run its course through the judicial system as an individual grievance. But its contours present portents of the aspirations of a whole class of persons whose daily engagement with physical disability defines their continuing quest for dignity. Through a maze of statutes, rules, and regulations, the case raises core issues about the actual realisation of equal opportunity and access to the disabled. It tests what the law professes with how its ideals are realised.-5-
NC: 2024:KHC:23107 WP No. 15444 of 2024 The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realising the rights of the disabled. Voices such as those of the appellant are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future.
42. We are, therefore, of the view that DoPT and UPSC have fundamentally erred in the construction which has been placed on the provisions of the 2016 RPwD Act. To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognised entitlements. To do so would be contrary to the plain terms as well as the object of the statute.
H. Reasonable accommodation
43. At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the 2016 RPwD Act. Intrinsic to its realisation is recognising the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In seeking to project these values as inalienable rights of the disabled, the 2016 RPwD Act travels beyond being merely a charter of non- discrimination. It travels beyond imposing restraints on discrimination against the disabled. The law does this by -6- NC: 2024:KHC:23107 WP No. 15444 of 2024 imposing a positive obligation on the State to secure the realisation of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law. In its emphasis on substantive equality, the enactment of the legislation is a watershed event in providing a legal foundation for equality of opportunity to the disabled.
46. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence -- whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is "reasonable" because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence.-7-
NC: 2024:KHC:23107 WP No. 15444 of 2024
48. Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated. The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature. The intersectional features arise in particular contexts due to the presence of multiple disabilities and multiple consequences arising from disability. Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy-makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customisation she seeks. Even if she is in a class of her own, her needs must be met. [ Amita Dhanda, Prof. of Law, NALSAR, "In a class of my own : Reasonable accommodation from a disability perspective" [ppt presentation].] While assessing the reasonableness of an accommodation, regard must also be had to the benefit that the accommodation can have, not just for the disabled person concerned, but also for other disabled people similarly placed in future.-8-
NC: 2024:KHC:23107 WP No. 15444 of 2024 K. Realising the transformative potential of the Rights of Persons with Disabilities Act, 2016 : From principle to practice
70. In the hearing, one of us presciently noted that the imposition of the criterion of a benchmark disability to access a scribe--an arena in which it has no relevance as per the statutory framework--betrays a profound lack of awareness on the part of the authorities about the 2016 RPwD Act. The OM of 29-8-2018, in its preambular portion recites as follows:
"The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in government jobs for persons with benchmark disabilities as defined under Section 2(r) of the said Act."
71. As one commentator notes, "if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is". [ CRPD Committee, Concluding Observations on India, Para 6[b].] Another notes that there exists no justification for this move. [ Dr Sanjay Jain, "Right to education : An enabler" in "Marginalised communities and higher education" in Eds Surendrakumar and H.L. Vinod "Marginalised communities and higher education", Sage Publication 2021 Critical Analysis of Scribe guidelines [forthcoming].] The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the 2016 RPwD Act. We would also like to take judicial notice of the fact that several instances have come to -9- NC: 2024:KHC:23107 WP No. 15444 of 2024 light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the 2016 RPwD Act and the OM dated 29-8-2018. [ Live Law News Network, "BCI Creating Entry Barriers For Disabled Lawyers" : Says Blind AIBE Candidate; Seeks Proper Implementation of 2018 PwD Guidelines, 7-1-2021, available at <https://www.livelaw.in/top-stories/bar-council-of-india-aibe- persons-with-disability-blind-law-student-168124>; Rintu Mariam Biju, "AIBE 2021 : Is BCI creating entry barriers for disabled law grads?" 23-1-2021, Bar and Bench, available at <https://www.barandbench.com/news/aibe-2021-is-bci- creating-entry-barriers-for-disabled-law-grads>.]
73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order [Vikash Kumar v. UPSC, 2020 SCC OnLine SC 1119] of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition forms part of Entry IV of the Schedule to the 2016 RPwD Act. The writer's cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the 2016 RPwD Act.
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74. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the Government.
6. As can be seen from the aforesaid judgment, Apex Court has categorically held that a person suffering from "Writer's Cramp"
would be entitled to be provided with a scribe since the same partakes the nature of a disability covered under the said Act of Disabilities, 2016. Under these circumstances, I am of the view that the impugned endorsement is contrary to the material the Apex Court in Vikash Kumar's case supra, and the same deserves to be set aside.
7. Insofar as the reliance is placed by the respondent No.1, State Government proceedings at Annexure - J dated 11.02.2021 are concerned, a perusal of the said proceedings will indicate that the rights of a person with "Writer's Cramp" to be provided a scribe is not expressly / specifically excluded in the said proceedings and consequently merely because, person suffering from "Writer's Cramp" is not specifically mentioned in the said proceedings, the said proceedings cannot be made the basis to come to the conclusion that the petitioner was not entitled to the benefit of being
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NC: 2024:KHC:23107 WP No. 15444 of 2024 provided a scribe especially in the light of the judgment of the Apex Court in Vikash Kumar's case supra. Under these circumstances, I am of the view that the impugned endorsement at Annexure - A deserves to be set aside and necessary directions are to be issued to the respondent to provide scribe to the petitioner for the ensuing KPSC for Gazette probationers 2023-24 scheduled to be conducted from 21.07.2024 onwards.
8. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order at Annexure - A is hereby set aside.
(iii) The concerned respondents are directed to provide a scribe in favour of the petitioner or alternatively permit the petitioner to engage the services of a scribe for the purpose of writing the KPSC examination for Gazette probationers 2023-24 scheduled to be conducted on 21.07.2024 onwards by taking necessary steps in this regard and informing the petitioner about the same within a period of one week from the date of receipt of a copy of this Order.
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(iv) It is further directed that in addition to either providing a scribe or permitting the petitioner to engage the services of a scribe as stated supra, concerned respondents shall also provide all other benefits conferred upon all other candidates as per Annexure - J dated 11.02.2021 in favour of the petitioner.
Sd/-
JUDGE DHA List No.: 1 Sl No.: 35