Andhra Pradesh High Court - Amravati
Jammula Nandasai Mithra vs The State Of Andhra Pradesh, on 29 February, 2024
1
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
[ 3333 ]
THURSDAY ,THE TWENTY NINETH DAY OF
FEBRUARY
APHC010170722023
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
WRIT PETITION NO: 8781 OF 2023
Between:
JAMMULA NANDASAI MITHRA ...PETITIONER(S)
AND
THE STATE OF ANDHRA PRADESH AND
OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. JADA SRAVAN KUMAR
Counsel for the Respondents: GP FOR MED HEALTH AND FAMILY
WELFARE
Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed therewith, the High Court may
be pleased to issue a Writ Order or direction particularly, one in the
nature of writ of Mandamus declaring the action of the respondent
authorities in not considering the representation of the petitioner dated
29.03.2023 seeking reduction in the percentage of qualifying marks
from 50percent to 40percent in respect of the petitioner in all the
MBBBS I year examinations in view of her disability of 'Celebral Palsy'
in consonance with the Guidelines issued regarding admission of
students with ' Specified Disabilities under the right of persons with
disability Act 2016, with respect to admission in MBBS course and the
said action of the authorities is illegal, unjust, unfair, arbitrary and
being in violation of the Fundamental Rights of the petitioner
guaranteed under Article 14, 19, and 21 of the Constitution of India
besides being in violation of the provisions enshrined the Right of
Persons with Disabilities Act, 2016 and consequently direct the
respondent to consider the representation of the petitioner dated
29.03.2023 and pass
2
The Court made the following:
ORDER:
Heard learned counsel for the petitioner and learned counsel appearing for the respondents.
2. The case of the petitioner, in brief, is that the petitioner is the person suffering with the disability of "Cerebral Palsy' and 'The Certificate for person with Disability' was issued to the petitioner, which discloses that the petitioner is having a physical (Locomotor/ Orthopaedic) disability in relation to the Bilateral Lower Limb, which is considered as Bench mark disability under Section 2(r) of the Rights of Persons with Disabilities Act, 2016. The petitioner attended the NEET (National Eligibility Cum Entrance Exam) (UG) in the year of 2020 and his name was enlisted under Sl.No.7 in the ' List of Eligible Candidates under PwD Category for Admission' into UG Medical, Dental and Ayush courses for the Academic Year 2020-21. Pursuant to which the petitioner has been admitted into the I Year of MBBS course in Andhra Medical College, Visakhapatnam under Dr.Y.S.R. University of Health Sciences, A.P., Vijayawada for the batch of 2020-201 with Admission No.Admn/20242/S1/2020. Accordingly, the petitioner has attended the I Year MBBS examination in the month of January /February, 2022, wherein the result of the petitioner was declared as Failed. 3
3. Further, the case of the petitioner is that the University has set the minimum qualifying percentage of marks i.e., 50 to all the students, without considering that the petitioner herein comes under disabled category, owing to which the petitioner could not get the pass marks. Subsequently, the petitioner attended the supplementary examination in the month of May 2022, wherein she was again declared as Failed.
4. The grievance of the petitioner is that though the Government of India- Ministry of Social justice and Empowerment (Department of Empowerment of persons with Disabilities (Divyangan)] has issued guidelines for conducting written examination for persons with Benchmark Disabilities and guideline No.XII of the said guidelines provide for the provision of compensatory time, the respondent authorities have not afforded reasonable accommodation to the petitioner in terms of Section 2(y) of the Right of Persons with Disabilities Act, 2016 [for short 'RPWD' Act, 2016]. The provisions under RPWD Act 2016 makes a distinction between "persons with disability" and "persons with benchmark disability", the later being those who are certified by a disability certificate to have not less than 40% of the specified disabilities enumerated under the Schedule to the Act; Persons with benchmark disability are eligible for special provisions of reservation in employment and higher education. However, Section 20 of the Act applied to all the persons with disabilities 4 and is not limited to persons with benchmark disability. As such the petitioner would be entitled to measures of reasonable accommodation such as the provision of extra time in respect of the examination for the candidates who do not opt the measure of scribe.
5. Further, the Ministry of Social justice and Empowerment (Department of Empowerment of persons with Disabilities (Divyangan) on 28.08.2018 issued an Office Memorandum, titled as "Guidelines for conducting written examination for persons with benchmark disabilities". Said Memorandum notes that the Department issued guidelines for conducting written examinations for persons with disabilities defined under the erstwhile legislation, namely the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Basing on the findings of the Committee, the Union Government has through the Office Memorandum laid down revised guidelines "for conducting a written examination for persons with benchmark disabilities"
in supersession of the earlier guidelines dated 26.02.2013. Hence, the petitioner submitted a representation dated 29.03.2023 seeking reduction in the percentage of qualifying marks from 50% to 40% in respect of the petitioner in all the MBBS I year examinations in view of her disability in consonance with the Guidelines issued under RPWD Act 2016. But the respondents did not consider the same. Hence, the present Writ Petition. 5
6. Today when the Writ Petition came up for hearing, learned counsel for the petitioner limited his arguments only to the extent of granting additional time for writing the examination under the guidelines issued by the Department of Empowerment of persons with Disabilities (Divyangan) vide Office Memorandum dated 28.08.2018. Learned counsel for the petitioner further expressed his urgency in passing an order in the present Writ Petition duly stating that the examinations are commencing from 02.03.2024 and requested this Court to direct the respondents to permit the petitioner an additional 60 minutes time, for each paper of 3 hours duration, in addition to the time granted by the University vide letter 27.12.2021.
7. The said request of the learned counsel for the petitioner was seriously opposed by the learned Standing Counsel, appearing for the University as well as learned Standing Counsel appearing for the 6th respondent/National Medical Commission.
8. During the course of arguments, it is brought to the notice of this Court that in general cases, a candidate would be entitled to make only four attempts but duly taking into consideration the benchmark disability of the petitioner, the petitioner was given a fifth chance as the petitioner could not succeed in the last four attempts and the fact also remains that the case of the petitioner can be treated as a special case, as such some 6 more time in addition to the time granted by the University vide letter dated 27.12.2021 may be granted.
9. Learned Standing Counsel for the University has informed this Court that duly taking into consideration of the guidelines issued by the Department of Empowerment of persons with Disabilities (Divyangan) vide Office Memorandum dated 28.08.2018, the University has already granted 60 minutes additional time to the petitioner, but, inspite of the same, the petitioner could not succeed in her last four attempts.
10. At this juncture, this court feels it appropriate to extract clause XII of the guidelines issued by the Department of Empowerment of persons with Disabilities (Divyangan) vide Office Memorandum dated 29.08.2018, which reads as under:-
"XII. The word "extra time or additional time" that is being currently used should be changed to "compensatory time" and the same should not be less than 20 minutes per hour of examination for persons who are allowed use of scribe/reader/lab assistant. All the candidates with benchmark disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration. In case the duration of the examination is less than an hour, then the duration of additional time should be allowed on pro-rata basis. Additional time should not be less than 5 minutes and should be in the multiple of 5 ."7
11. From the above, it is clear that the guidelines allow additional time of minimum one hour, for examination of 03 hours duration; but, do not specify the maximum time limit.
12. In view of the same, taking into consideration the fact that the 5th attempt is going to be the last attempt of the petitioner and treating the case of the petitioner as a special case, on sympathetic and humanitarian grounds, this Court feel it appropriate to direct the respondents to provide 30 minutes additional time to the petitioner, in addition to the 60 minutes time which was already granted as per University letter dated 27.12.2021. However, it is made clear that the concession given to the petitioner would apply only to the petitioner in view of the circumstances as explained above and only to the present academic year and the same cannot be treated as precedent.
13. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
_______________________ JUSTICE V.SUJATHA Pnr