AVNI PRAKASH versus NATIONAL TESTING AGENCY (NTA) & ORS on 23 November 2021

[2021] 11 S.C.R. 891

AVNI PRAKASH

v.

NATIONAL TESTING AGENCY (NTA) & ORS.

(Civil Appeal No. 7000 of 2021)

NOVEMBER 23, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDA. S. BOPANNA, JJ.]

Rights of Persons with Disability Act, 2016:

ss. 2(r), 17(i), 32, Schedule Entry 2(a) – Person withdisability(PwD) – Compensatory time of one hour to write entranceexam – Claim of – Appellant student sufferring from Dysgraphiawith disability of 40 per cent, appeared for the NEET (UG) – Claimof additional one hour of compensatory time owing to her PwDstatus – Initially assurance by the designated centre that if the rulesprescribed, facilities for PwD would be provided, however,compensatory time of an hour not granted, and her paper forciblycollected after three hours – Writ petition by appellant seekingdirection to the National Testing Agency-first respondent to hold afresh examination for the appellant while accommodating her withall relaxations and benefits – Dismissed by the High Court – Onappeal, held: Individual injustices originating in a wrongful denialof rights and entitlements prescribed under the law cannot be sentinto oblivion on the ground that these are a necessary consequenceof a competitive examination – All authority under the law is subjectto responsibility, and to a sense of accountability – Appellantwrongfully deprived of compensatory time of one hour whileappearing for the NEET without any fault of her own, despite herentitlements as a PwD and a PwBD – Appellant denied herentitlement to reasonable accommodation and the State failed tofulfil its positive duty of protecting her right to inclusive education– Appellant suffered injustice by a wrongful denial of theserelaxations which first respondent was bound to scrupulouslyenforce – Lack of remedy would cause irretrievable injustice to thelife of the appellant – Though the relief sought for holding are-examination for the NEET (UG) is denied since it would causeuncertainty and chaos, however, issuance of directions to first

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Arespondent to consider steps to be taken to rectify the injustice –First respondent to ensure that provisions made at the NEET in termsof the rights and entitlements available under the Act are clarifiedin the NEET Bulletin by removing ambiguity – Owing to the confusionbetween the authorities, persons working for the first respondentand the exam centres to be sensitised and trained, on a regularBbasis.

Object of the 2016 Act – Held: Effective participation of thestudents with disabilities in the society is the beneficial object ofthe legislation – Safeguards provided by the law must be dulyenforced and any breach of entitlement must be answerable at lawC– Responsibility and power without accountability are anathema tothe Constitution.

ss. 2(r), (s) – Persons with disabilities and Persons withbenchmark disabilities – Distinction between – Stated.

Ds. 2(m) – Inclusive Education – Right to Inclusive Education– Held: Inclusive education is indispensable for ensuring universaland non-discriminatory access to education – Convention on Rightsof Persons with Disabilities recognises that inclusive educationsystems must be put in place for a meaningful realisation of theright to education for PwD – Thus, a right to education is essentiallyEa right to inclusive education – 2016 Act provides statutory backingto the principle of inclusive education – Right to inclusive educationis realised through the provision of reasonable accommodation,denial of which to a PwD amounts to discrimination – On facts, theappellant was denied her entitlement to reasonable accommodationFand the State failed to fulfil its positive duty of protecting her rightto inclusive education.

Disposing of the appeal, the Court

Conclusion

Disposing of the appeal, the Court

HELD: 1. The relief sought by the appellant for holding are-examination for the NEET (UG) is denied. The appellant wasGwrongfully deprived of compensatory time of one hour whileappearing for the NEET without any fault of her own, despite herentitlements as a PwD and a PwBD. The first respondent isdirected to consider what steps could be taken to rectify theinjustice within the stipulated period. Further, it should takenecessary consequential measures under intimation to theH

Directorate General of Health Service. In the future, the firstrespondent should ensure that provisions which are made at theNEET in terms of the rights and entitlements available underthe Rights of Persons with Disability Act 2016 are clarified in theNEET Bulletin by removing ambiguity. Having due regard to thedecision of this Court in Vikash Kumar’s case and the statutoryprovisions contained in the 2016 Act, facilities which are providedby the law to PwD would not be constricted by reading in thehigher threshold prescribed for PwBD. It is clarified that for thepurpose of availing of the reservation under Section 32 of theAct or an upper age relaxation as contemplated in the provisions,the concept of benchmark disability continues to apply. The secondrespondent was ignorant about the facilities to which the appellantwas entitled. There was an evident confusion between theauthorities working at the first respondent as well. The personsworking for the first respondent and exam centres like that ofthe second respondent should be sensitised and trained, on aregular basis, to deal with requirements of reasonableaccommodation raised by PwDs. [Para 57][935-C-H; 936-A-B]

2. Dysgraphia is contemplated as a specified disability inEntry 2(a) of the Schedule to the Act. Dysgraphia causes impairedhandwriting and demonstrates inconsistent handwriting, poorspelling and spacing, transcription difficulties and difficulties incoherence. Through the appellant’s certificates, it is evident thatshe is a PwBD having dysgraphia, for the purposes of Section2(r) of the RPwD Act 2016. [Para 20][914-G; 915-D]

3.1 The first respondent, as a testing agency, has beenassigned specific functions which are clarified in the NEETBulletin 2021. The instant case demonstrates that the appellantwho suffers from dysgraphia with a disability of 40 per cent hassuffered a tragedy of errors in the process leading up to admissionsfor the graduate medical courses in 2021, over which she had nocontrol. The first respondent, was duty-bound to comply with theGuidelines on Written Examination, prescribed by the Ministryof Social Justice and Empowerment. The grievance of theappellant is that she was deprived of the compensatory additional AB

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Aone hour for attempting the examination, simply because thesecond respondent (the designated centre) was unaware of therights of PwD candidates and the corresponding obligations onthe second respondent. This state of affairs reflects theresponsibility of the first respondent to ensure that personnel atexamination centres are trained and provided with clear guidelinesBfor the implementation of the provisions made for PwD. In theabsence of adequate training, rights conferred on candidates with“specified disabilities” by Parliament, are set at nought.[Paras 30, 31][920-F-H; 921-A-B]

3.2 On 11 October 2021, the first respondent’s counselCinformed the High Court that the appellant was not entitled toget an additional one hour of compensatory time because of afailure to obtain a disability certificate in Appendix VIII-A from acentre designated in Appendix VIII-B. In the face of thisstatement, the counsel for the appellant agreed to produce aDcertificate from an authorized agency in Appendix VIII-B of theNEET Bulletin 2021, within a week. The High Court accordinglydirected the first respondent to consider the certificate within aweek of its production by the appellant. It is unfortunate that thefirst respondent issued such instructions to its counsel. Thestatement of the first respondent before the High Court on 11EOctober 2021 was plainly contrary to the provisions of the NEETBulletin 2021. Para 5.4(b) of the NEET Bulletin 2021 indicatesthat the appellant was entitled to compensatory time of one hourfor an examination of three hours, irrespective of her reliance ona scribe. Para 5.3 indicates that the requirement of a certificateFin Appendix VIII-A applies after the results are declared. If thiswere not so, there is no purpose in requiring the candidate todisclose the rank which is obtained in the NEET. It is as clearfrom paras 5.3.1, 5.3.3, 5.3.4 and 5.3.5 that a certificate issued bya designated centre under Appendix VIII-B is to be consideredonly at the stage of admission. Yet, in the teeth of the specificationsGin paras 5.3.1, 5.3.3 and 5.4(b) of the NEET Bulletin 2021, theHigh Court was led to believe that an Appendix VIII-A certificatefrom a designated centre specified in Appendix VIII-B wasrequired to seek an extra hour of compensatory time. There is H

evident confusion between the authorities working at the firstrespondent, which has led to a tragedy affecting the legitimaterights and entitlement of a student who suffers from a specifieddisability. [Paras 32, 33][921-C-H]

3.3 The expression ‘person with benchmark disability’ isdefined in Section 2(r). The concept of benchmark disabilities isthus specifically with reference to the provisions of Chapter VIof the RPwD Act 2016. In contrast with the definition in Section2(r), the expression ‘person with disability’ is defined in Section2(s). The rights and entitlements conferred upon PwD arespecified in Chapter II. Among those rights, Section 3 embodiesthe duty of the appropriate government to ensure that PwD enjoythe right to equality, a life with dignity and respect for theirintegrity equally with others. Sub-section (5) of Section 3 requiresthe appropriate government to take necessary steps to ensurereasonable accommodation for PwD. Section 4 requires theappropriate government and all local authorities to take measuresto ensure that women and children with disabilities enjoy rightsequal with others. These rights and entitlements which areconferred upon PwD cannot be constricted by adopting thedefinition of benchmark disability as a condition precedent or asa condition of eligibility for availing of the rights. Benchmarkdisability, as defined in Section 2(r), is specifically used in thecontext of Chapter VI. Undoubtedly, to seek admission to aninstitution of higher education under the 5 per cent quota, thecandidate must, in terms of Section 32(1), fulfil the description ofa PwBD. But equally, where the statute has conferred rights andentitlements on PwD, which is wider in its canvass than abenchmark disability, such rights cannot be abrogated or dilutedby reading into them the notion of benchmark disability. It isevident that despite the clarification of the position in law in VikashKumar’s case, the law continues to be violated and NTA hascontinued to restrict the grant of facilities only to PwBD. By wayof abundant caution, it is reiterated that the facility of reservationin terms of Section 32 is available to PwBD. Other facilitiescontemplated by the RPwD Act 2016 for PwD cannot be sorestricted by an administrative order which would be contrary tothe provisions of the statute. [Paras 35, 36, 37][922-E, F-G;923-A-B, D-G; 924-A, H; 925-A-B]

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A4.1 Education plays a key role in social and economicinclusion and effective participation in society. Inclusive educationis indispensable for ensuring universal and non-discriminatoryaccess to education. The Convention on Rights of Persons withDisabilities recognises that inclusive education systems must beput in place for a meaningful realisation of the right to educationBfor PwD. Thus, a right to education is essentially a right to inclusiveeducation. The RPwD Act 2016 provides statutory backing tothe principle of inclusive education. Section 2(m) defines inclusiveeducation. [Para 38][925-C-D]

4.2 The RPwD Act 2016 contains provisions mandatingCreasonable accommodation. The expression “reasonableaccommodation” is defined in Section 2(y). The right to inclusiveeducation is realised through the provision of reasonableaccommodation. It has been emphasised that reasonableaccommodation is at the heart of the principle of equality andDnon-discrimination espoused under the RPwD Act 2016. Thedenial of reasonable accommodation to a PwD amounts todiscrimination. It is the positive obligation of the State to createthe necessary conditions to facilitate the equal participation ofdisabled persons in society. [Para 41][926-B, C-E]

E4.3 The appellant was denied her entitlement to reasonableaccommodation and the State failed to fulfil its positive duty ofprotecting her right to inclusive education. The Guidelines forWritten Examination dated 29 August 2018 issued as an OfficeMemorandum by the Ministry of Social Justice and Empowerment,hold the field insofar as the written examinations for PwDFcandidates are concerned. [Para 42][926-G-H; 927-A]

4.4 In terms of the provisions of RPwD Act 2016, there is aclear distinction between the rights available to a candidate suchas the appellant at the stage of the examination (in terms of theprovisions of Section 17(i) falling under Chapter III) and the rightsGapplicable at the stage of admission (under Section 32 falling underChapter VI) of the RPwD Act 2016. There was a gross miscarriageof justice in this case by the High Court directing the appellant,who is aggrieved by the denial of a compensatory one hour, toseek a certificate in terms of Appendix VIII-A, on the basis of a H

statement made by the counsel for the first respondent. Theconfusion has also arisen because of the manner in which NEETBulletin 2021 has been drafted. A clear-eyed information bulletinmust provide a distinction between the rights that are availableto PwD candidates at the stage of the examination and the rightswhich are available in terms of reservation after the results ofthe NEET are declared. As a result of the ambiguity in the NEETBulletin 2021, and the absence of adequate training to the secondrespondent which was allotted as the appellant’s centre, theappellant lost the benefit of a compensatory hour during the courseof the entrance examination. This injustice was compounded bythe manner in which the proceedings took place before the HighCourt where the instructions given to the counsel for the firstrespondent were in the teeth of the rights and entitlementsavailable in terms of the Guidelines for Written Examination dated29 August 2018 and para 5.4(b) of the NEET Bulletin 2021. TheGuidelines for Written Examination hold the field for allexaminations attempted by PwDs. As a matter of fact, it wouldappear that para 5.4(b) of the NEET Bulletin 2021 seeks to enforceand implement this requirement. As a consequence of thesecompounding errors, the appellant has suffered a grave injustice.[Paras 43, 44][928-C-H]

5.1 The line of submissions by the first respondent seemsto suggest that besides the provisions under Para 5.3 and 5.4 ofthe NEET Bulletin 2021, it proposes to issue further guidelinesto stakeholders, especially to candidates; invigilators; centresupervisors; observers; and city coordinators. However, thisdoes not address the issue at hand, which is the steps that thefirst respondent must take to deal with cases such as that of theappellant where the student has been made to suffer. Thissuffering was, firstly, a consequence of inadequate knowledge atthe designated centre (the second respondent), in regard to thefacilities available to PwD students; and secondly, by an elementof ambiguity in the instructions framed in the NEET Bulletin2021. [Para 45][929-A-C]

5.2 One way of looking at the matter, as the first respondentwould have the Court do, is to accept that in a competitive ABC

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Aentrance examination such as the NEET, a large body of candidatesappears across the country. According to the viewpoint espousedby the first respondent, individual cases of prejudice caused byan improper application of the norms governing the examinationconstitute an acceptable, though unfortunate, consequence. Theother way of looking at the problem is that while the firstBrespondent must utilise the experience gained in conducting theNEET process to proactively take steps to fill up deficiencies,the examination process must continue to account for the needto rectify injustice caused to a student, who played no role incausing such injustice. The number of cases where such injusticesCtake place maybe a few or more than that; but it cannot be ignoredthat for a student who is made to suffer, the consequence is indeedserious. The entire course of a career depends upon the properconduct of the NEET and, the application of a binding normprescribed by the Ministry of Social Justice and Empowerment for the benefit of students suffering from disabilities. An authorityDbound by the dicta of law and the Constitution, cannot throw upits hands in despair, instead of attempting to remedy the injusticewhich is caused to a student. A judge cannot ignore that behindthe statistics is a human face, reflecting the aspirations, joy andtears of a student and her family. [Para 46][929-C-H]E5.3 In the instant case, the appellant does not claimmisfeasance on the part of the first respondent but plain and simplenegligence in complying with the rights and entitlements providedto PwDs under the RPwD Act 2016. For effective participation ofthe students with disabilities in the society, which undoubtedly is Fthe salutary object of the legislation, the safeguards which areprovided by the law must be duly enforced and any breach ofentitlement must be answerable at law. Responsibility and powerwithout accountability are an anathema to our Constitution.[Para 47][929-H; 930-A-B]G5.4 The first respondent is justified in taking the stancethat a re-examination cannot be ordered for one student. Theoption of a re-examination for a single student would also standeschewed by the decision in Vaishnavi Vijay’s case. Holding afresh examination will delay medical admissions and cause H

uncertainty and chaos. To that extent, the denial of the reliefsought for conducting a fresh examination for the appellant is notdisturbed. At the same time, the first respondent must factor inthe possibility of such errors occurring in the process of conductingthe NEET. The manner in which the first respondent deals withcases of serious prejudice, as in the instant case, has to be decidedby it as an expert agency. [Paras 48, 50][930-B-C; 932-B-D]

5.5 This Court would eschew the course of dictating themanner in which the grievance should be rectified, leaving it tothe discretion of the testing agency which is entrusted with theoverall responsibility of conducting the examination. The firstrespondent took certain steps as noted in Vaishnavi Vijay’s case.Similarly, in the instant case, this Court is of the categorical viewthat the first respondent cannot shirk or abrogate its responsibilityto rectify the injustice which has been caused to the appellant.The first respondent may consider extrapolation of the marksawarded to the appellant or grant compensatory marks. Similarto the steps in Vaishnavi Vijay’s case, the first respondent couldalso consider adopting a ‘no negative marks’ scheme. The firstrespondent is not restricted to only the above options and willleave the decision on the modalities of remedying the injusticecaused to the appellant to the first respondent. The injustice whichhas resulted is clearly due to a breach in observing theentitlements due to the appellant under the RPwD Act 2016.[Para 51][932-D-G]

5.6 The given statement indicates that the appellant hassecured an All India Rank of 1721 out of 2684 candidates qualifiedin the PwD category. In relation to the State of Maharashtra, theappellant has secured rank 249 out of 390 candidates in the PwDcategory. The first respondent has stated that approximately15.4 lakh candidates appeared at the NEET (UG) 2021 on12 September 2021 for which the result was declared on1 November 2021 and the All India Rank was forwarded on9 November 2021 to the Ministry of Health and Family Welfare,Government of India to conduct counselling for admission. It wassubmitted that alteration of the result at this stage wouldprejudicially affect other candidates who are ranked above the AB

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Aappellant. In essence, the above submissions boils down to thefirst respondent informing the Court that in an examination ofsuch large proportions where over 16 lakh students registeredand over 15 lakh students appeared, it would not be possible toundo the injustice which has been done to a single candidate.The first respondent must remember that all authority under theBlaw is subject to responsibility, and above all, to a sense ofaccountability. The first respondent is governed by the rule oflaw and by the constitutional requirement of observing fairness.Behind the abstract number of ‘15 lakh students’ lie human livesthat can be altered due to the inadvertent, yet significant errorsCof the first respondent. [Paras 53, 54][934-C-G]

5.7 The first respondent, as an examining body, was boundto scrupulously enforce the Guidelines for Written Examinationswhich provides for specific relaxations. The appellant has sufferedinjustice by a wrongful denial of these relaxations and a lack ofDremedy by this Court would cause irretrievable injustice to thelife of the student. The RwPD Act 2016 prescribing beneficialprovisions for persons with specified disabilities would have nomeaning unless it is scrupulously enforced. The all authority underthe law is subject to responsibility, and above all, to a sense ofaccountability. Individual injustices originating in a wrongful denialEof rights and entitlements prescribed under the law cannot besent into oblivion on the ground that these are a necessaryconsequence of a competitive examination. [Paras 55, 56][934-G-H; 935-A, B-C]

National Testing Agency v. Vaishnavi Vijay Bhopale SLPF(C) 17027 of 2021; Vikash Kumar v. Union PublicService Commission (2021) 5 SCC 370 – relied on.

Vidhi Himmat Katariya v. State of Gujarat (2019) 10SCC 20 : [2019] 12 SCR 821 – referred to.

Case Law Reference

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(2021) 5 SCC 370[2019] 12 SCR 821

relied onPara 37, 41, 57referred toPara 42

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.7000 of2021.

From the Judgment and Order dated 29.10.2021 of the High Courtof Judicature at Bombay in Writ Petition (L) No. 21578 of 2021.

Rushabh Vidyarthi, Manjeet Singh Rathor, Vikas Jain, Advs. forthe Appellant.

Rupesh Kumar, Adv. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

AIntroduction................................................................... 3*BApplicable laws and guidelines .................................. 9*

B.1 Guidelines for Written Examination.......................... 9*

B.2 NEET Bulletin 2021 ..................................................10*

CSubmissions.................................................................14*

DAnalysis ........................................................................19*

D.1Obligations under the NEET Bulletin 2021 ..... 20*

D.2Applicability of the RPwD Act 2016 ................28*D.2.1 Distinction between PwD and PwBD...............28*

D.2.2. Right to Inclusive Education ...........................32*

ERedressing the injustice ...........................................37*FConclusion ...................................................................45*

Introduction

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theHigh Court of Judicature at Bombay dated 29 October 2021. The HighCourt dismissed the appellant’s petition under Article 226 of theConstitution.

3. The appellant suffers from Dysgraphia, which is a specifieddisability listed in Entry 2(a) of the Schedule to the Rights of Persons Ed. Note - [*]denotes the actual pagination in the Original Judgment.

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Awith Disability Act 2016[1]. The appellant has been diagnosed with a 40per cent permanent disability, falling within the statutory definition of a‘person with benchmark disability’[2] under Section 2(r) of the RPwDAct 2016. The appellant claims that as a person with disability[3], she isentitled to reasonable accommodation and certain relaxations. Amongthem is the benefit of “inclusive education” by a suitable modification toBthe examination system, as mandated by Section 17(i) of the RPwDAct, 2016. The Ministry of Social Justice and Empowerment has issuedguidelines for conducting “Written Examination for Persons withBenchmark Disabilities” on 29 August 2018[4]. These guidelines governthe examinations of all students covered by the RPwD Act 2016. TheyCare to be followed by all examining authorities and educational institutionsconducting regular or competitive examinations. The National TestingAgency – the first respondent, is responsible for conducting the NationalEligibility cum Entrance Test[5] for admission to under-graduate medicalcourses. The appellant urges that the Guidelines on Written Examinations are referenced in clauses 5.3 and 5.4 of the Information Bulletin of theDNational Eligibility cum Entrance Test (UG)-2021[6] issued by the firstrespondent, and are hence binding on them.

4. The appellant appeared for the NEET on 12 September 2021.Given her PwD status, she claimed a relaxation in terms of an additionalhour of compensatory time, as against the total time of three hoursEprescribed for regular candidates. The appellant was allotted the secondrespondent (Thakur College of Engineering and Technology, Kandivali[East], Mumbai) as her centre for undertaking the NEET. The appellantaverred that the second respondent was ignorant of the grant of specialfacilities that had to be provided to PwD candidates. The grievance of

Fthe appellant is that the second respondent had initially assured her thatfacilities for PwD, if prescribed in the rules, would be provided to her.However, towards the end of the scheduled duration of three hours, heranswer sheet was “forcibly” collected together with the category ofregular students appearing for the examination depriving her ofcompensatory time.G

1 “RPwD Act 2016’’2 “PwBD’’

3 “PwD’’4 “Guidelines on Written Examinations’’

5 “NEET’’H6 “NEET Bulletin 2021’’

5. On 23 September 2021, the appellant moved a writ petitionunder Article 226 of the Constitution before the High Court of Judicatureat Bombay. Among other alternative reliefs, she sought a direction to thefirst respondent to hold a fresh examination for the appellant whileaccommodating her with all relaxations and benefits to which she wasentitled under the rules and regulations.

6. On 11 October 2021, the High Court passed the following interimorder:

“1. The petition seeks an order and direction against the respondentno.1 to re-appear for NEET Entrance Test by providing her withcompensatory time and all other relaxations/ benefits that she isentitled to by virtue of her “person with disability” status.

2. It is the case of the petitioner that she obtained disabilitycertificate on 6[th] June 2021 from Sion Hospital certifying that thepetitioner was suffering from Dysgraphia and recommending theremedial measures. The petition obtained another certificate oflearning disability on 15[th] September, 2021 issued by the SionHospital.

3. The petitioner produced these certificates with the respondentno. 2 college, who conducted the said NEET test on behalf of therespondent no.1. It is the case of the petitioner that the petitionerbeing disabled, could not complete the paper within three hoursassigned for the said test and had been requesting for an additionalhour time to complete the said test. The respondent no.2 howeverdid not grant additional hour. By ad-interim order dated 30[th]September 2021, this Court directed the respondent nos.1 and 3not to declare the result of the petitioner.

4. Mr. Rodrigues, learned counsel for the respondent no.1 on theother hand strongly placed reliance on the information Bulletingissued by the respondent no.1 for NEET (UG-21) and moreparticularly clauses 5.3.1, 5.3.3, 5.3.4, 5.3.5, 5.4(b) and AppendixXIII-A and Appendix-B. He submits that the petitioner not havingobtained disability certificate as per the format prescribed inAppendix XIII-A and Appendix-B read with the above referredclauses of the said information Bulletin, the petitioner was notentitled to get additional one hour compensatory time for theexamination of three hours assigned for examination under clause AB

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5.4 of the said information Bulletin. It is submitted by the learnedcounsel on instruction that if the petitioner produces the disabilitycertificate from one of the centres recognized by the respondentno. 1 referred in Appendix VIII-B, the case of the petitioner wouldbe considered.

5. It is not in dispute that the respondent no. 3 college permittedthe petitioner to appear for the said NEET test though the petitionerhad produced the learning disability certificate issued by the SionHospital without raising any objection. It is the case of the petitionerthat the petitioner had made a request to give the benefit of clause5.4(b) for compensatory time of one hour for the examination ofthree hours. The petitioner had not used the facility of any scribe.

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6. In view of the statement made by the learned counsel for therespondent no.1 and in view of the fact that the petitioner hasalready appeared in the said test without raising any objection bythe respondent no.2, we direct the respondent no.1 to takeDappropriate decision on the application of the petitioner for re-appearing in the said test keeping in mind the principles laid downby the Hon’ble Supreme Court in case of Vikash Kumar vs.Union Public Services Commission & Others, (2021) 5 SCC370 i.e. of reasonable accommodation by making adjustments toEenable disabled person to effectively counter the barriers posedby disability person and sympathetically. Learned counsel forthe petitioner agrees to produce the certificate from one ofthe agency prescribed in the said Information Bulletin atAppendix VIII-B within one week from today. Therespondent no.1 shall consider the certificate obtained byFthe petitioner from one of the agency prescribed AppendixVIII-B within one week from the date of the petitionerproducing such certificate and shall communicate thedecision that would be taken by the respondent no.1 to thepetitioner within two days the date of taking a decision. It isGmade clear that this order shall not be used as a precedent in anyother matter.

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7. Place the petition on board for admission first on board on 28[th]October, 2021. Parties to act on the authenticated copy of thisorder.”

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7. In furtherance of the interim order of the High Court, theappellant stated that she approached the Grant Government MedicalCollege, Mumbai (the sixth respondent) on 12 October 2021, but wasinformed that the certificate in the format prescribed under AppendixVIII-A is applicable at the time of admission when a PwD candidate isclaiming reservation and not for claiming relaxation and benefits duringthe examination. For further clarification, the appellant approached theDirectorate of Medical Education and Research (the fifth respondent).The fifth respondent reiterated that the certificate under AppendixVIII-A cannot be issued before the declaration of results.

8. On 26 October 2021, an additional affidavit was filed by theappellant placing relevant material to indicate that a certificate conformingto Appendix VIII-A is issued only after the declaration of results andwas required only at the time of seeking admission. By the impugnedjudgment dated 29 October 2021, a Division Bench of the High Courtdismissed the appellant’s writ petition. While dismissing the petition, theHigh Court has noted that the statement which was made on behalf ofthe first respondent that the appellant’s case would be considered if acertificate is produced from one of the centres referred in AppendixVIII-B was incorrect and was made by the counsel due to a“miscommunication”. Despite noting the appellant’s contention that sheis not required to obtain any such certificate from the agency prescribedin Appendix VIII-B, the High Court declined to entertain the petition forthe following reasons:

“7. It is not in dispute that the certificate produced by the petitionerfrom Sion Hospital was not from one of the designated agencyprescribed in Appendix-Vlll-B. lt is also not in dispute that evenpursuant to the opportunity granted by this Court on 11[th] October,2021 to the petitioner to produce the certificate in terms of thestatement made by the learned counsel for the petitioner, thepetitioner has not produced the certificate from the said agencyprescribed in Appendix Vlll-8 even at this stage.

8. We are therefore not inclined to grant prayer clause (a) therebyallowing the petitioner to appear for the NEET Entrance Test byproviding her with the compensatory time, and all other relaxations/benefits that she is claiming to be entitled to by virtue of her personwith the purported disability status…..”

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A9. Nonetheless, the Division Bench observed that if the appellantsubmits a representation to the first respondent, that would be dulyconsidered within four weeks. The High Court has also adverted to anad-interim order dated 28 October 2021 of this Court in a Special LeavePetition under Article 136 of the Constitution instituted by the firstrespondent (National Testing Agency v. Vaishnavi Vijay Bhopale[7]).BThis Court has stayed an interim order of the High Court directing afresh examination in that case. Relying on the interim order of this Courtdated 28 October 2021, the High Court vacated its interim order anddismissed the writ petition filed by the appellant.

10. We have heard Mr Rushabh Vidyarthi, learned counselCappearing for the appellant and Mr Rupesh Kumar, learned counsel forthe first respondent, who has appeared on caveat. Since the disputeessentially concerns the appellant and the first respondent, notice to theother respondents is dispensed with.

DBApplicable laws and guidelines

B.1Guidelines for Written Examination

11. On 29 August 2018, the Ministry of Social Justice andEmpowerment (Department of Empowerment of Persons withDisabilities) issued guidelines for conducting a written examination forEPwBD. The Guidelines for Written Examinations underscore the needfor a comprehensive policy. In this regard, Paragraph 1, Clause IIstipulates:

“II. There should be a uniform and comprehensive policy acrossthe country for persons with benchmark disabilities for writtenFexamination taking into account improvement in technology andnew avenues opened to the persons with benchmark disabilitiesproviding a level playing field. Policy should also have flexibility toaccommodate the specific needs of case-to-case basis.”

Paragraph 1, Clause III provides that there is no need to stipulateGseparate criteria for regular and competitive examinations. The remainingguidelines prescribe several facilities by way of reasonableaccommodation. Broadly, they provide for the following entitlements:

H7 Special Leave Petition (C) 17027 of 2021

(i) The facility of Scribe/Reader/Lab Assistant to a PwBDAwho has limitation in writing including that of speed, at theiroption;

(ii) An option of choosing the mode for taking the examinationssuch as Braille, computer, or large print; and B

(iii) Compensatory time for appearing in the examination.

12. Paragraph 1, Clause XII of the Guidelines for WrittenExaminations provides for compensatory time in the following terms:

“The word “extra time or additional time” that is being currentlyused should be changed to “compensatory time” and the sameshould not be less than 20 minutes per hour of examination forpersons who are allowed use of scribe/reader/lab assistant. Allthe candidates with benchmark disability not availing the facilityof scribe may be allowed additional time of minimum of one hourfor examination of 3 hours duration. In case the duration of theexamination is less than an hour, then the duration of additionaltime should be allowed on pro-rata basis. Additional time shouldnot be less than 5 minutes and should be in the multiple of 5.”

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Paragraph 2 of the notification issuing the guidelines stipulatesthat they should be “scrupulously followed”. All recruitment agencies,academic/examination bodies etc. under the administrative control ofeach ministry or department were to be advised to ensure compliance.

E

B.2 NEET Bulletin 2021

13. Chapter V of the NEET Bulletin 2021, issued by the firstrespondent, deals with “Counselling And Reservation For Admission ToMBBS And BDS Courses”. In compliance with the Ministry of SocialJustice and Empowerment’s Guidelines for Written Examination, Clause5.4 deals with the facilities to be provided to PwBD candidates whileappearing in the examination. Clause 5.4 is extracted below:

F

“5.4 Facilities for PwBD candidates to appear in the exam G

As per the Guidelines issued by the Department of Empowermentof Persons with Disabilities (Divyangian) under the Ministry ofSocial Justice & Empowerment from time to time on the subject“Written Examination for Persons with BenchmarkDisabilities”, a candidate with one of the benchmark disabilities H

A(as defined in Section 2(r) of RPwBD Act, 2016) holding aDisability Certificate in the format prescribed in Appendix-VIII-A is entitled to the following facilities:

a. The facility of Scribe, in case he/she has a physical limitationand a scribe is essential to write the Examination on his/herBbehalf, being so certified by a CMO/Civil Surgeon/MedicalSuperintendent of a Govt. Health Care Institution in the formatgiven at Appendix-VIII-C. However, as a measure of cautionand due to the prevailing circumstances of COVID-19Pandemic, such candidate is required to bring his/her ownScribe alongwith a Letter of Undertaking given at Appendix-CVIII-D, for using own scribe in the format.

b. Compensatory time of one hour for the Examination of threehours duration, whether such candidate uses the facility of Scribeor not.

D[……..]

Note:

1. The minimum degree of disability should be 40% (BenchmarkDisability) in order to be eligible for availing reservation forpersons with specified disability (For details refer to Appendix-EVIII).

2. The extent of “specified disability” in a person shall be assessedin accordance with the “Guidelines for the purpose of assessingthe extent of specified disability in a person included under theRights of Persons with Disabilities Act, 2016 (49 of 2016)”Fnotified in the Gazette of India by the Ministry of Social Justiceand Empowerment [Department of Empowerment of Personswith Disabilities (Divyangjan)] on 4th January 2018.

3. No change in the category will be entertained after the lastdate specified by NTA for NEET(UG)-2021 Registration andGno subsequent changes will be effective after the declarationof NTA NEET (UG) Score 2021.”

14. Appendix VIII-A of the NEET Bulletin 2021 provides for theformat for a certificate of disability. The relevant portion of the prescribedform for such a certificate is extracted below:H

“Appendix-VIII-AA

CERTIFICATE OF DISABILITY

(As per Gazette Notification No MCI-18(1)/2018-Med./187262dated 5th Feb 2019/13th May-2019 for Admission to Medical Courses in All India Quota)

B

[….]

_________________________________________________________________________________________________________NEET Application No. __________________ NEET Roll No._______________ Rank No.___________has the followingDisability (Name of the Specified Disability)__________________ in (percentage) of ______________(in words) ___________________ (in Figures)

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• Please tick on the Specified Disability [Assessment to be done in accordance with the GazetteNotification No. S076(E) dated 4th January 2018 of theDepartment of Empowerment of Persons with Disability(Divyangjan), Ministry of Social Justice & Empowerment]:

G

[2021] 11 S.C.R.

A

B

CD[…..]”

15. Appendix VIII-B provides for a list of authorised centres forthe issuance of disability certificates. Appendix VIII-C provides for aEformat for a certificate regarding the physical limitation of an examineeto write the examination. The relevant portion of this certificate isextracted below:

“

Appendix-VIII-C

FCERTIFICATE REGARDING PHYSICAL LIMITATION IN ANEXAMINEE TO WRITE

This is to certify that I have examined Mr/Ms/Mrs_________________ (name of the candidate with disability), a person with ______________ (nature and percentage ofGdisability as mentioned in the certificate of disability), S/o /D/o___________________a resident of _________________

(Village/District/State) and to state that he/she has physicallimitation which hampers his/her writing capabilities owing to his/her disability.

[….]”

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A

C Submissions

16. Mr Rushabh Vidyarthi, learned counsel appearing on behalf of the appellant has urged the following submissions:

(i) In 2017, the appellant’s school teachers suspected her tohave a typical case of learning disabilities and advised herBto seek an urgent diagnosis. The appellant was referred toLTMG Sion Hospital, Paediatric Neurodevelopment Centrewhere she was diagnosed with “Dysgraphia”, popularlyknown as a “writer’s cramp”;

(ii) On 6 June 2017, a certificate of disability was issued to theappellant by the LTMG Sion Hospital, PaediatricNeurodevelopment Centre. In March 2019, the appellantappeared for the class 10 CISCE examination where shewas allowed the facility of a scribe. The appellant passedthe class X examination with an aggregate of 92.5 per centmarks; C

D

(iii) In September 2021, the appellant passed her class XIIexaminations with an aggregate of 87.4 per cent marks anda best-of-four special score of 90.25 per cent;

(iv) In anticipation of appearing for the NEET, the appellantapproached Grant Medical College on 28 July 2021. SheEwas directed to Cooper Hospital Mumbai and thereafter toLTMG Sion Hospital for carrying out requisite tests and forrenewal of her earlier certificate dated 6 June 2017. TheLTMG Sion Mumbai provided the appellant with a disabilitycertificate dated 7 September 2021. However, they misspeltFthe name of her mother and the certificate was sent backfor correction. The corrected certificate was issued on 15September 2021 and uploaded by the Department ofEmpowerment of Persons with Disabilities, on the websiteof the Ministry of Social Justice and Empowerment, on 23September 2021;G

G

(v) The admit card for the NEET required her to state herPwD status, which she answered in the affirmative;

(vi) On 12 September 2021, the allotted examination centre didnot grant her the compensatory hour on the ground that the H

A

centre was not informed of such a rule and “forcibly”collected her answer sheet along with the general categorystudents; and

(vii) The appellant lodged a protest with the first respondent byan email dated 12 September 2021 to which she receivedBan auto-generated reply dated 13 September 2021.

17. Aggrieved by this, the appellant instituted a writ petition beforethe High Court of Judicature at Bombay. The following submissionswere urged to assail the impugned judgement:

(i) Initially, when the appellant’s writ petition came up beforeCthe Division Bench of the High Court on 30 September2021, the first respondent requested for an adjournment toseek instructions on the grievance of the appellant and tomake a statement on whether she could re-appear for theNEET;

D(ii)On 11 October 2021, the counsel for the first respondentstated before the High Court that since the appellant didnot have a disability certificate in the prescribed format,she would be entitled to a compensatory hour only if sheproduced a disability certificate from one of the centresErecognized by the first respondent in Appendix VIII-B tothe NEET Bulletin 2021. The counsel for the first respondentstated that her case could be considered upon productionof a valid certificate. It was in this backdrop that the HighCourt directed the first respondent to take an appropriatedecision on the application of the appellant for re-appearingFin the NEET;

(iii) Since the fifth and sixth respondents refused to issue thecertificate in the format prescribed in Appendix VIII-B, theappellant approached the High Court with permission tofile an affidavit and implead the fifth and sixth respondents.GOn 25 October 2021, the High Court permitted the appellantto file an affidavit for placing this development on therecord. The appellant thereupon filed an affidavit;

(iv) In the hearing held before the High Court on 11 October2021, the first respondent urged that the appellant had notHobtained a certificate in terms of Appendix VIII-A. The appellant responded by submitting that the certificateprescribed in Appendix VIII-A is applicable only at the stageof counselling and admission, and not at the stage of theexamination. This is evident from the format whichmandates that the candidate has to fill their rank secured inthe examination which evidently is not available until acandidate appears in an examination and the results aredeclared. Furthermore, the certificate requires the candidateto mention a NEET roll number which is notified only fourdays prior to the date of the examination. Hence, it wouldbe impractical to presume that a candidate would be ableto secure an Appendix VIII-A certificate within a time gapof mere four days. Yet, the Division Bench incorrectlydismissed her petition for failure to produce the AppendixVIII-A certificate on the day of the NEET;

(v) The first respondent has misunderstood the different stagesand distinct relaxations which are granted to a student witha specified disability. The grant of compensatory time is anintrinsic element of the requirement of an inclusiveeducation under Section 17(i) of the RPwD Act 2016. Indistinction from this, reservation in higher educationalinstitutions is provided in Section 32 of the RPwD Act 2016.The former is comprised in Chapter III while the latter isprescribed in Chapter VI; and

(vi) The Guidelines for Written Examination dated 29 August2018, formulated by the Ministry of Social Justice andEmpowerment, have to be followed by all examining bodies,including the first respondent.

18. Mr Rupesh Kumar, learned counsel appearing on behalf ofthe first respondent has urged the following submissions:

(i) The appellant had appeared in NEET and attempted 84 outof 180 questions. She answered 50 questions correctly and34 incorrectly, and was awarded 166 marks out of 720marks;

(ii) The appellant secured Rank 1721 in the PwD category,Rank 206003 in the General category, and her All IndiaRank for counselling is 661699; AB

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A(iii)The first respondent considered the case of the appellantand deliberated over whether some relief could be grantedto the appellant, such as by awarding proportionate marks.However, a total of 15,44,275 candidates appeared for theexamination, for whom the All India Rank list has been sentto the Directorate UR of Health Services to conductBcounselling for admission. Any alteration in the result atthis stage would cause prejudice to the candidates rankedabove the appellant;

(iv) The alteration of the rank list may also cause further delaysin the completion of the admission process; andC

(v) To bring more clarity and sensitization towards therequirement of Scribe and ‘compensatory time’ for theNEET (UG) 2022, guidelines would be issued to allstakeholders (such as candidates, invigilators andsuperintendents). The candidate would have to declare theirDdisability status, type of disability and whether they wouldbe requiring compensatory time in the application form.Along with this, the application form would require thecertificate of disability to be uploaded at the time ofregistration. Further, the admit card of the candidate wouldEreflect these details. In addition to this, several guidelineswould be issued to the invigilators, centre superintendentsand city coordinators to avoid the present situation.

19. The rival submissions come up for analysis.

D AnalysisF

20. The grievance of the appellant, as we have noted in theprefatory part of this judgment, is that on 12 September 2021, the allottedexamination centre did not grant her the compensatory hour on the groundthat the centre was not informed of such a rule. As noted earlier,Dysgraphia is contemplated as a specified disability in Entry 2(a) of theGSchedule to the RPwD Act, 2016 which is as follows:

“Specified Disability

2. Intellectual disability, a condition characterised by significantlimitation both in intellectual functioning (reasoning(sic), learning,problem solving) and in adaptive behaviour which covers a rangeHof every day, social and practical skills, including—

(a) “specific learning disabilities” means a heterogeneous groupof conditions wherein there is a deficit in processing language,spoken or written, that may manifest itself as a difficulty tocomprehend, speak, read, write, spell, or to do mathematicalcalculations and includes such conditions as perceptual disabilities,dyslexia, dysgraphia, dyscalculia, dyspraxia and developmentalaphasia; (b) “autism spectrum disorder” means a neuro-developmentalcondition typically appearing in the first three years of life thatsignificantly affects a person’s ability to communicate, understandrelationships and relate to others, and is frequently associated withunusal or stereotypical rituals or behaviours.”

Dysgraphia causes impaired handwriting and demonstratesinconsistent handwriting, poor spelling and spacing, transcriptiondifficulties and difficulties in coherence. Through the appellant’scertificates dated 6 June 2017 and 23 September 2021, it is evidentthat she is a PwBD having dysgraphia, for the purposes of Section2(r) of the RPwD Act 2016.

21. The crux of the matter urged before this Court is whether theappellant was entitled to an hour’s worth of compensatory time owing toher PwD status under the NEET Bulletin 2021 and the Guidelines forWritten Examination issued by the Ministry of Social Empowerment andJustice on 29 August 2018.

D.1 Obligations under the NEET Bulletin 2021

22. The roles, powers and functions of the first respondent arespecified in the NEET Bulletin 2021. Para 2.3 of the NEET Bulletin2021 contains necessary disclaimers and clarifies the functions of thefirst respondent. The relevant sub-clauses are extracted below:

“2.3.1. The responsibility of NTA is limited to inviting onlineapplications, the conduct of the entrance test, declaration of theresult, and providing All India Rank (AIR) to the DirectorateGeneral of Health Services, Ministry of Health and FamilyWelfare, Government of India.

2.3.2. The Information contained in this Information Bulletinrelating to the pattern of exam, syllabus, eligibility criteria for A

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Aappearing in NEET (UG), the quota of seats, reservation, PwBD,admission norms /procedure pertaining to the concerned coursesare as per the norms set out by the respective Regulatory Bodies.

2.3.3 The Result and All India Rank of NEET (UG) will be prepared/notified by NTA as per the norms/criteria fixed by the NMC /BDGHS (for MBBBS/BDS) and by CCIM (for BAMS/BSMS/BUMS) and by CCH (for BHMS).

2.3.4 Hence, in case of any doubt/ dispute; the Information inrespect of the above-mentioned subject matters, as provided inthe respective regulations/notifications of the concerned RegulatoryCBodies, shall be considered as authentic and final.”

The above extract indicates that the role of the first respondent isto notify online applications, conduct an entrance test, declare the resultand provide the All India Rank to the Directorate General of HealthServices[8]. The information which is specified in the NEET Bulletin 2021,Dincluding in regard to the pattern of examination, syllabus, eligibility, quotasof seats for reservation, PwBD, and admission norms/procedures are inaccordance with the norms prescribed by the concerned regulatory bodies.Consequently, in the event of doubt or dispute, the information providedby the regulations/notifications of the regulatory bodies are to be treatedas authentic and final.E23. Para 5.3 of the NEET Bulletin 2021 specifically providesguidelines for PwD candidates. They are in the following terms:

“5.3 Guidelines for PwD Candidates

5.3.1. The candidates with a Disability shall be consideredFfor admission in medical course against 5% of the totalseats, in accordance with the criteria prescribed under theRegulation on Graduate Medical Examination (1997) as amendedupto 13.05.2019 (Please see Appendix-VIII). The PwBDCertificate for this purpose shall be in the format as givenat Appendix-VIII-A and from the designated Centres asGgiven at Appendix-VIII-B

5.3.2. For AIIMS: In accordance with RPwD Act 2016, PwDReservation on a Horizontal & Category basis will be followed subject to evaluation by the Medical Board of Institute to determineeligibility.

5.3.3 Candidates who consider themselves eligible for thiscategory are advised to ensure their eligibility by gettingthemselves examined at any Government Medical College/District Hospital/Government Hospital. Such GovernmentMedical College/District Hospital/Government Hospitalshall issue a Disability Certificate in reference with ChapterVII of the Rights of Persons with Disabilities Rules, 2017.Such a Disability Certificate is issued as per the Scheduleto the Rights of Persons with Disabilities Act, 2016 and theGuidelines for the purpose of assessing, the extent ofspecified disability in a person included under the Rightsof Persons with Disabilities Act, 2016 notified in the Gazetteof India by the Ministry of Social Justice and Empowerment[Department of Empowerment of Persons with Disabilities(Divyangjan)] on 4th January 2018 and does not confer anyright on any candidate to seek admission in a medical courseunder PwBD Quota. The aforesaid Certificate shall be toascertain whether a candidate can apply to NTA forappearing in NEET (UG) – 2021 under the PWBD Quotaonly.

5.3.4. Thereafter, the candidates, upon selection underPWBD Category, shall have to produce a DisabilityCertificate issued by the Disability Assessment Board,which shall have assessed the candidate in reference withcriteria prescribed under the Regulations on GraduateMedical Education, 1997 as amended upto 14.05.2019.Thus, it is relevant that the candidates after a declarationof the result have to appear before the DisabilityAssessment Board so as to determine whether they mayregister or participate in the common online Counsellingtowards admission in medical courses. In case candidatesare found to be Ineligible by the Disability AssessmentBoard, in reference with criteria prescribed under theRegulations on Graduate Medical Education, 1997 asamended on 14.05.2019, they may not register orparticipate in the common online Counselling and any online AB

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Aprovisional allotment of the medical college shall be entirelyfraudulent on the part of the candidate. It is relevant thatphysical verification of various certificates including academic aswell as Disability Certificate is only upon reporting for admissionto the medical college.

B5.3.5. It is further clarified that the certificates issued bythe authorized Centres (Appendix-VIII-B) designated forthe purpose of DGHS, shall only be considered for admissionto the medical courses and no other certificate issued by anyother Government Medical College/District Hospital/GovernmentHospital will be accepted.C

5.3.6. The Disability Certificate to be issued in the format given inAppendix-VIII-A (vide DGHS Notice Ref. No. U-11011/04/2020/05-MEC dated 26.10.2020) has to be issued by the designatedCentres (Appendix-VIII-B) as per the criteria prescribed underthe Regulations on Graduate Medical Education (1997) as amendedDupto 14.05.2019 w.r.t. common counselling conducted by MCC /DGHS for All India Quota seats and for Medical Institutions thatare subject to common counselling of MCC/ DGHS.

5.3.7. Likewise, the designated Counselling Authorities of State/UT Governments shall constitute Disability Assessment Boards/ECentres for assessing the suitability of the candidate in referencewith criteria prescribed under the Regulations on Graduate MedicalEducation (1997) as amended upto 14.05.2019 and shall notifythe same on their respective websites.

5.3.8. The reservation policy, as prescribed by the governmentFfrom time to time will be followed by the admitting institutes. Thecandidates are advised to look for the details at the time ofadmission.”

24. Para 5.3.1 clearly indicates that a PwD shall be consideredGfor admissionto the medical courses for five per cent of the total seatsin accordance with the criteria specified in the Regulations on GraduateMedical Education 1997 as amended up to 13 May 2019. The PwBDcertificate for this purposeis to be prepared in the format prescribed inAppendix VIII-A and from a designated centre specified in AppendixHVIII-B.

25. Appendix VIII contains the Graduate Medical EducationRegulations (Amendment) 2019. The amendment provides that AppendixH of the ‘Regulations on Graduate Medical Education 1997’, dealingwith the admission of students with “specified disabilities” under theRPwD Act 2016 with respect to MBBS admission, would be substitutedwith “Appendix H-1”. Appendix H-1 specifies the following notes:

“Appendix “H-1”

Guidelines regarding admission of students with “SpecifiedDisabilities” under the Rights of Persons with Disabilities Act,2016 with respect to admission in M.B.B.S. Course.

Note: 1. The “Certificate of Disability” shall be issued inaccordance with the Rights of Persons with DisabilitiesRules, 2017 notified in the Gazette of India by the Ministryof Social Justice and Empowerment [Department ofEmpowerment of Persons with Disabilities (Divyangjan)]on 15th June 2017.

2. The extend of “specified disability” in a person shall beassessed in accordance with the “Guidelines for the purpose ofassessing the extent of specified disability in a person includedunder the Rights of Persons with Disabilities Act, 2016 (49 of2016)” notified in the Gazette of India by the Ministry of SocialJustice and Empowerment [Department of Empowerment ofPersons with Disabilities (Divyangjan)] on 4th January 2018.

3. The minimum degree of disability should be 40%(Benchmark Disability) in order to be eligible for availingreservation for persons with specified disability.

[…..]”

26. Appendix VIII-A contains a format of the certificate ofdisability. Significantly, this certificate provides for the rank obtained bythe candidate in the NEET examination and the roll number. Evidently,the certificate at Appendix VIII-A cannot be issued at a stage beforethe candidate appears for the NEET examination and the declaration ofresults. In fact, the certificate bears an endorsement that it has to beissued as per the Gazette notification dated 5 February 2019 / 13 May2019 for admission to medical courses in the All India Quota.

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A27. Para 5.3.3 of the NEET Bulletin 2021 requires candidateswho consider themselves to be eligible for this category (PwD) to ensuretheir eligibility by getting themselves examined at a government medicalcollege/district hospitals/ government hospitals which would issue adisability certificate with reference to Chapter VII of the Rights ofPersons with Disabilities Rules 2017. Such a certificate is issued inBpursuance of the schedule to the RPwD Act 2016 and the guidelinesnotified by the Ministry of Social Justice and Empowerment on 4 January2018. Para 5.3.3 clarifies that this certificate does not confer a right toseek admission in a medical course under the PwBD quota.

C28. Upon selection under the PwBD category, the candidate hasto produce a disability certificate issued by the Disability AssessmentBoard as per the specific guidelines under Para 5.3.4. The Board wouldassess the candidates with reference to the criteria prescribed under theRegulations on Graduate Medical Education 1997, as amended up to 14May 2019. Hence, after the declaration of the result, PwBD candidatesDhave to appear before the Disability Assessment Board to determinewhether they may register or participate in the common online counsellingfor admission to a medical course.

29. Para 5.3.5 specifies that the certificates (Appendix VIII-B)issued by centres authorized by the DGHS shall only be considered forEadmissionto the medical courses. Para 5.3.6 also stipulates that thedisability certificate issued in the Appendix VIII-A format, by a centredesignated under Appendix VIII-B, shall be issued in terms of the criteriaregulating common counselling.30. The above discussion indicates that the first respondent, as aFtesting agency, has been assigned specific functions which are clarifiedin the NEET Bulletin 2021. The present case demonstrates that theappellant who suffers from dysgraphia with a disability of 40 per centhas suffered a tragedy of errors in the process leading up to admissionsfor the graduate medical courses in 2021, over which she had no control.G

31. The first respondent, as a testing agency, was duty-bound tocomply with the Guidelines on Written Examination dated 29 August2018, prescribed by the Ministry of Social Justice and Empowerment.The grievance of the appellant is that she was deprived of thecompensatory additional one hour for attempting the examination, simplyHbecause the second respondent (the designated centre) was unaware of the rights of PwD candidates and the corresponding obligations on thesecond respondent. This state of affairs reflects the responsibility of thefirst respondent to ensure that personnel at examination centres are trainedand provided with clear guidelines for the implementation of the provisionsmade for PwD. In the absence of adequate training, rights conferred oncandidates with “specified disabilities” by Parliament, are set at nought.

32. The tragedy of errors that has taken place in the present caseis compounded by the manner in which the case proceeded before theHigh Court. On 11 October 2021, the first respondent’s counsel informedthe High Court that the appellant was not entitled to get an additionalone hour of compensatory time because of a failure to obtain a disabilitycertificate in Appendix VIII-A from a centre designated in AppendixVIII-B. In the face of this statement, the counsel for the appellant agreedto produce a certificate from an authorized agency in Appendix VIII-Bof the NEET Bulletin 2021, within a week. The High Court accordinglydirected the first respondent to consider the certificate within a week ofits production by the appellant.

33. It is unfortunate that the first respondent issued suchinstructions to its counsel. The statement of the first respondent beforethe High Court on 11 October 2021 was plainly contrary to the provisionsof the NEET Bulletin 2021. Para 5.4(b) of the NEET Bulletin 2021(extracted above) indicates that the appellant was entitled tocompensatory time of one hour for an examination of three hours,irrespective of her reliance on a scribe. Para 5.3 indicates that therequirement of a certificate in Appendix VIII-A applies after the resultsare declared. If this were not so, there is no purpose in requiring thecandidate to disclose the rank which is obtained in the NEET. It is asclear as daylight from paras 5.3.1, 5.3.3, 5.3.4 and 5.3.5 that a certificateissued by a designated centre under Appendix VIII-B is to be consideredonly at the stage of admission. Yet, in the teeth of the specifications inparas 5.3.1, 5.3.3 and 5.4(b) of the NEET Bulletin 2021, the High Courtwas led to believe that an Appendix VIII-A certificate from a designatedcentre specified in Appendix VIII-B was required to seek an extra hourof compensatory time. There is evident confusion between the authoritiesworking at the first respondent, which has led to a tragedy affecting thelegitimate rights and entitlement of a student who suffers from a specifieddisability.

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[2021] 11 S.C.R.

AD.2 Applicability of the RPwD Act 2016

D.2.1 Distinction between PwD and PwBD

34. In the decision in Vikash Kumar v. Union Public ServiceCommission[9], this Court categorically observed that the concept ofbenchmark disability is applicable in the context of the provisionsBcontained in Chapter VI of the RPwD Act 2016, which is titled ‘SpecialProvisions for Persons with Benchmark Disabilities’. These provisionsinclude:

(i) Section 31- free education for children with benchmarkdisabilities; C

(ii) Section 32- reservation in higher educational institutions;

(iii) Section 33- identification of posts for reservation;

(iv) Section 34- reservation;

(v) Section 35- incentives to employers in the private sector; D

(vi) Section 36- special employment exchange; and

(vii) Section 37- special schemes and development programmes.35. The expression ‘person with benchmark disability’ is definedin Section 2(r) as follows:E

“Section 2 (r) “person with benchmark disability” means a personwith not less than forty per cent. of a specified disability wherespecified disability has not been defined in measurable terms andincludes a person with disability where specified disability hasbeen defined in measurable terms, as certified by the certifyingFauthority;”

The concept of benchmark disabilities is thus specifically withreference to the provisions of Chapter VI of the RPwD Act 2016. Incontrast with the definition in Section 2(r), the expression ‘person withdisability’ is defined in Section 2(s) as follows:G“(s) “person with disability” means a person with long termphysical, mental, intellectual or sensory impairment which, ininteraction with barriers, hinders his full and effective participationin society equally with others;”

H9 (2021) 5 SCC 370 [“Vikash Kumar’’]

36. The rights and entitlements conferred upon PwD are specifiedin Chapter II. Among those rights, Section 3 embodies the duty of theappropriate government to ensure that PwD enjoy the right to equality, alife with dignity and respect for their integrity equally with others. Section3 provides as follows:

“3. Equality and non-discrimination.—(1) The appropriateGovernment shall ensure that the persons with disabilities enjoythe right to equality, life with dignity and respect for his or herintegrity equally with others. (2) The appropriate Government shalltake steps to utilise the capacity of persons with disabilities byproviding appropriate environment. (3) No person with disabilityshall be discriminated on the ground of disability, unless it is shownthat the impugned act or omission is a proportionate means ofachieving a legitimate aim. (4) No person shall be deprived of hisor her personal liberty only on the ground of disability. 8 (5) Theappropriate Government shall take necessary steps to ensurereasonable accommodation for persons with disabilities.”

Sub-section (5) of Section 3 requires the appropriate governmentto take necessary steps to ensure reasonable accommodation for PwD.Section 4 requires the appropriate government and all local authorities totake measures to ensure that women and children with disabilities enjoyrights equal with others.

37. These rights and entitlements which are conferred upon PwDcannot be constricted by adopting the definition of benchmark disabilityas a condition precedent or as a condition of eligibility for availing of therights. Benchmark disability, as defined in Section 2(r), is specificallyused in the context of Chapter VI. Undoubtedly, to seek admission to aninstitution of higher education under the 5 per cent quota, the candidatemust, in terms of Section 32(1)[10], fulfil the description of a PwBD. Butequally, where the statute has conferred rights and entitlements on PwD,which is wider in its canvass than a benchmark disability, such rightscannot be abrogated or diluted by reading into them the notion of 10 Section 32 reads as follows:

10 Section 32 reads as follows:

32. Reservation in higher educational institutions.—(1) All Government institutions ofhigher education and other higher education institutions receiving aid from theGovernment shall reserve not less than five per cent. seats for persons with benchmarkdisabilities. (2) The persons with benchmark disabilities shall be given an upper agerelaxation of five years for admission in institutions of higher education.

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Abenchmark disability. This has been clarified in the judgment of this Courtin Vikash Kumar (supra) where it was observed thus:

“37. Both as a matter of textual construction and bearing in mindthe purpose and object underlying the term, it is necessary toemphasise that the definition in Section 2(s) cannot be constrictedBby the measurable quantifications tagged with the definition underSection 2(r).

….

39. The concept of benchmark disabilities under the 2016 RPwDAct has specifically been adopted in relation with the provisionsCof Chapter VI and Chapter VII. Chapter VI contains specialprovisions for persons with benchmark disabilities. Among thoseprovisions is Section 31 (free education for children with benchmarkdisability), Section 32 (reservation in higher educational institutions),Section 33 (identification of posts for reservation), Section 34D(reservation), Section 36 (Special Employment Exchange) andSection 37 (Special Schemes and Development Programmes).Chapter VII contains special provisions for persons withbenchmark disabilities in need of high support. Thus, the conceptof benchmark disabilities has been adopted by the legislationbearing in mind specific provisions which are contained in the lawEfor persons meeting this description.

40. Conflating the rights and entitlements which inhere inpersons with disabilities with the notion of benchmarkdisabilities does disservice to the salutary purposeunderlying the enactment of the 2016 RPwD Act. WorseFstill, to deny the rights and entitlements recognised forpersons with disabilities on the ground that they do notfulfil a benchmark disability would be plainly ultra vires the2016 RPwD Act.”

G

In Vikash Kumar (supra), the UPSC placed reliance on the CivilServices Examination Rules 2018 to submit that only PwBD can beprovided with the facility of a scribe. This Court held that the petitionerwas entitled to reasonable accommodation in the form of being providedwith the facility of a scribe for writing the UPSC examination even if heHdid not suffer from a benchmark disability. It is evident that despite the clarification of the position in law in Vikash Kumar (supra),the lawcontinues to be violated and NTA has continued to restrict the grant offacilities only to PwBD. By way of abundant caution, we reiterate thatthe facility of reservation in terms of Section 32 is available to PwBD.Other facilities contemplated by the RPwD Act 2016 for PwD cannotbe so restricted by an administrative order which would be contrary tothe provisions of the statute.

D.2.2. Right to Inclusive Education

38. Education plays a key role in social and economic inclusionand effective participation in society. Inclusive education is indispensablefor ensuring universal and non-discriminatory access to education. TheConvention on Rights of Persons with Disabilities recognises that inclusiveeducation systems must be put in place for a meaningful realisation ofthe right to education for PwD. Thus, a right to education is essentially aright to inclusive education. In India, the RPwD Act 2016 providesstatutory backing to the principle of inclusive education. Section 2(m)defines inclusive education as:

“(m) “inclusive education” means a system of education whereinstudents with and without disability learn together and the systemof teaching and learning is suitably adapted to meet the learningneeds of different types of students with disabilities;”

39. The RPwD Act 2016 contains salutary provisions on the rightsof PwD to inclusive education in Chapter III. Section 17, which forms apart of Chapter III, entails specific measures to promote and facilitateinclusive education for students with disabilities. Among other inclusivemeasures in Section 17, is sub-section (i) which prescribes a duty tomake suitable modifications in the curriculum and examination systemto meet the needs of students with disabilities. This duty can be fulfilledby providing extra time for the completion of examination papers and/orthe facility of a scribe. The provision of inclusive education is not limitedto children with disabilities but extends to adults with disabilities. Section18 provides that the government and local authorities are duty-bound totake measures to promote, protect and ensure participation of PwD inadult education and continuing education programmes on an equal footingwith others. Chapter VI prescribes special provisions for persons withbenchmark disabilities, including reservations in higher educationalinstitutions of not less than 5 per cent seats under Section 32.

AB

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A40. The provisions for reservation in Chapter VI specifically forPwBD are distinct from the provisions in Chapter III for PwD. PwDencompasses a wider group of which PwBD is a sub-set. This distinctionextends to efforts under Section 17 to promote inclusive education.

41. Above all, the RPwD Act 2016 contains provisions mandatingBreasonable accommodation. The expression “reasonable accommodation”is defined in Section 2(y), which reads as under:

“2(y)reasonable accommodation” means necessary andappropriate modification and adjustments, without imposing adisproportionate or undue burden in a particular case, to ensure toCpersons with disabilities the enjoyment or exercise of rights equallywith others;”

The right to inclusive education is realised through the provisionof reasonable accommodation. In Vikash Kumar (supra), this Courtemphasised that reasonable accommodation is at the heart of the principleDof equality and non-discrimination espoused under the RPwD Act 2016.The denial of reasonable accommodation to a PwD amounts todiscrimination. It is the positive obligation of the State to create thenecessary conditions to facilitate the equal participation of disabled personsin society. This Court observed thus:

E“44. The principle of reasonable accommodation captures thepositive obligation of the State and private parties to provideadditional support to persons with disabilities to facilitate their fulland effective participation in society. The concept of reasonableaccommodation is developed in section (H) below. For the present,suffice it to say that, for a person with disability, the constitutionallyFguaranteed fundamental rights to equality, the six freedoms andthe right to life under Article 21 will ring hollow if they are notgiven this additional support that helps make these rights real andmeaningful for them. Reasonable accommodation is theinstrumentality—are an obligation as a society—to enable theGdisabled to enjoy the constitutional guarantee of equality and non-discrimination…”

42. It is clear in the present case that the appellant was deniedher entitlement to reasonable accommodation and the State failed tofulfil its positive duty of protecting her right to inclusive education. TheGuidelines for Written Examination dated 29 August 2018 issued as anH

Office Memorandum by the Ministry of Social Justice and Empowerment,hold the field insofar as the written examinations for PwD candidatesare concerned. In Vidhi Himmat Katariya v. State of Gujarat[11] athree judge Bench of this Court observed that the certificate underAppendix VIII-A is applicable while seeking admissionto medical courses:

“The relevant essential eligibility criteria is required to be consideredwhen the petitioners were to get admission in the MBBS courseunder PwD quota. It is required to be noted and so stated in thereply affidavit filed on behalf of the MCI that the Expert Committeesubmitted the report – “Guidelines for admission of persons withSpecified Disabilities”, which was placed before the ExecutiveCommittee of the Council in its meeting held on 5.6.2018 whereinafter due discussion and deliberations it was decided to approvethe same. It was also decided that the said Expert CommitteeReport should be communicated to the Ministry of Health & FamilyWelfare in view of the schedule for counselling for admission toMBBS course for the academic year 20181-19. However, foradmission for the academic year 2018-19, it was at the stage of adraft notification and the Graduate Medical Education Regulations,1997 were not amended in light of the recommendations of theExpert Committee constituted by the MCI which has issued theDisability Guidelines, this Court directed to give admission as perthe unamended Graduate Medical Education Regulations, 1997.However subsequently and before the admission for theacademic year 2019-20 are given, notification dated 04.02.2019has been published and the Graduate Medical EducationRegulations, 1997 have been amended, as above. Therefore, inthe facts and circumstances of the case, it cannot be saidthat ‘Rules of the game are changed midway’, as sought tobe contended on behalf of the petitioners. As observedhereinabove, the essential eligibility criteria as perAppendix ‘H’ is required to be considered at the time whenthe candidates were seeking admission in the medicalcourse under PwD category. It is also required to be notedthat even the candidates seeking admission in PwD quotaare required to appear before the concerned Medical Boardat the time of actually seeking admission and after NEET

A

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Aresult is declared.Therefore, the relevant date forconsidering the essential eligibility criteria as per Appendix‘H’ shall be the date on which the candidates – petitionerssought admission in the MBBs course under PwD quota.Much prior thereto, notification dated 4.2.2019 has been issuedand published and therefore the respective petitioners shall beBgoverned by notification dated 04.02.2019.”

43. In terms of the provisions of RPwD Act 2016, there is a cleardistinction between the rights available to a candidate such as the appellantCat the stage of the examination (in terms of the provisions of Section17(i) falling under Chapter III) and the rights applicable at the stage ofadmission (under Section 32 falling under Chapter VI) of the RPwDAct 2016. There was a gross miscarriage of justice in this case by theHigh Court directing the appellant, who is aggrieved by the denial of acompensatory one hour, to seek a certificate in terms of AppendixDVIII-A, on the basis of a statement made by the counsel for the firstrespondent. It is noteworthy that the confusion has also arisen becauseof the manner in which NEET Bulletin 2021 has been drafted. A clear-eyed information bulletin must provide a distinction between the rightsthat are available to PwD candidates at the stage of the examinationEand the rights which are available in terms of reservation after the resultsof the NEET are declared. As a result of the ambiguity in the NEETBulletin 2021, and the absence of adequate training to the secondrespondent which was allotted as the appellant’s centre, the appellantlost the benefit of a compensatory hour during the course of the entranceexamination.F

44. This injustice was compounded by the manner in which theproceedings took place before the High Court where the instructionsgiven to the counsel for the first respondent were in the teeth of therights and entitlements available in terms of the Guidelines for WrittenExamination dated 29 August 2018 and para 5.4(b) of the NEET BulletinG2021. The Guidelines for Written Examination hold the field for allexaminations attempted by PwDs. As a matter of fact, it would appearthat para 5.4(b) of the NEET Bulletin 2021 seeks to enforce and implementthis requirement. As a consequence of these compounding errors, theappellant has suffered a grave injustice.H

ERedressing the injustice

45. The line of submissions urged before this Court by the firstrespondent seems to suggest that besides the provisions under Para 5.3and 5.4 of the NEET Bulletin 2021, it proposes to issue further guidelinesto stakeholders, especially to (i) candidates; (ii) invigilators; (iii) centresupervisors; (iv) observers; and (v) city coordinators. However, this doesnot address the issue at hand, which is the steps that the first respondentmust take to deal with cases such as that of the appellant where thestudent has been made to suffer. This suffering was, firstly, aconsequence of inadequate knowledge at the designated centre (thesecond respondent), in regard to the facilities available to PwD students;and secondly, by an element of ambiguity in the instructions framed inthe NEET Bulletin 2021.

46. One way of looking at the matter, as the first respondent wouldhave the Court do, is to accept that in a competitive entrance examinationsuch as the NEET, a large body of candidates appears across the country.According to the viewpoint espoused by the first respondent, individualcases of prejudice caused by an improper application of the normsgoverning the examination constitute an acceptable, though unfortunate,consequence. The other way of looking at the problem is that while thefirst respondent must utilise the experience gained in conducting theNEET process to proactively take steps to fill up deficiencies, theexamination process must continue to account for the need to rectifyinjustice caused to a student, who played no role in causing such injustice.The number of cases where such injustices take place maybe a few ormore than that (the Court has not been apprised of the statistical figure);but it cannot be ignored that for a student who is made to suffer, theconsequence is indeed serious. The entire course of a career dependsupon the proper conduct of the NEET and, as in the present case, theapplication of a binding norm prescribed by the Ministry of Social Justiceand Empowerment for the benefit of students suffering from disabilities.It is no answer for an authority bound by the dicta of law and theConstitution, to throw up its hands in despair, instead of attempting toremedy the injustice which is caused to a student. A judge cannot ignorethat behind the statistics is a human face, reflecting the aspirations, joyand tears of a student and her family.

47. In the present case, the appellant does not claim misfeasanceon the part of the first respondent but plain and simple negligence in A

BC

DEF

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H

Acomplying with the rights and entitlements provided to PwDs under theRPwD Act 2016. For effective participation of the students with disabilitiesin the society, which undoubtedly is the salutary object of the legislation,the safeguards which are provided by the law must be duly enforcedand any breach of entitlement must be answerable at law. Responsibilityand power without accountability are an anathema to our Constitution.B48. The first respondent is justified in taking the stance that are-examination cannot be ordered for one student. The option of are-examination for a single student would also stand eschewed by adecision of a two judge Bench of this Court in National Testing Agencyv. Vaishnavi Vijay Bhopale[12]. on 12 November 2021. The Court hadCdealt with a case where a petition had been filed before the High Courtfor a direction to the first respondent to re-examine certain students byconducting a separate NEET examination, before the declaration ofresults, for admission to under-graduate medical courses for 2021-2022.The first and second respondents, in that case, had appeared in the NEETDon 12 September 2021 and were in the same examination room. At thetime of distribution of the question papers and the answer booklet, therewas a mix-up and different booklets and answer sheets that did notmatch the code were given to them. In accordance with the instructionsto students, the respondents reported the mix up between the answersheet and the booklet to the invigilators. The invigilators did not rectifyEthe mistake pointed out by the respondents and within the short timewhich remained, the respondents answered as many questions as theycould. In pursuance of an interim order of the High Court dated 7 October2021, the first respondent suggested that the answer key would beimplemented for scoring/evaluation of the 6 candidates in whose casesFthere was a mix up in the distribution of the test booklet code and OMRsheets as per the sequence of questions given in the test booklet code.However, the High Court on 20 October 2021 directed the NTA to holda fresh examination for the two candidates. On 28 October 2021, thisCourt stayed the judgment of the High Court and requested the Solicitor General to suggest a course of action to be adopted in respect of the twoGstudents “who have suffered due to the fault of the invigilators”. Whenthe proceedings were taken up by this Court, on 12 November 2021, theSolicitor General informed the Court that the results of the NEET (UG)had been declared and that the answer sheets of the two candidates had been corrected on the basis of the suggestion which was given by thefirst respondent to the High Court. The concession made by NTA wasrecorded by this Court in its order dated 12 November 2021:

“The Ld. Solicitor General submitted that the answer sheets ofrespondent Nos.1 and 2 have been corrected on the basis of thesuggestion that was given by the petitioner to the High Court.Without insisting on the test booklet code and OMR sheets beingdifferent, the answers given by the petitioners have beenevaluated.’’

Against this backdrop, the Bench consisting of Justice LNageswara Rao and Justice B R Gavai set aside the order of the HighCourt directing the holding of a fresh examination. The Court observedthus:

“There is no dispute that there was a mix up in distribution of theanswer sheets and the test booklet where the code is different.Realising that a wrong answer given to a question would attractnegative marks and also relying upon the instructions given to thecandidates, respondent Nos. 1 and 2 pointed out to the invigilatorsthat the correct answer sheet with a proper code has to be providedto them.

We have perused the answer sheets of respondent Nos. 1 and 2and the marks given to respondent Nos. 1 and 2 from the materialfurnished by the learned Solicitor General on 28.10.2021. Theyhave attempted most of the questions. No negative marks havebeen given to them. We find substance in the submissions ofMr. Choudhary that due to the loss of precious time, respondentNos. 1 and 2 could not answer all the questions and we alsoappreciate the mental state of mind of respondent Nos. 1 and 2due to the confusion. Though, we sympathize with the cause ofrespondent Nos.1 and 2, we find it difficult to direct re-examinationfor them alone. Therefore, we set aside the direction given by theHigh Court to the petitioner to conduct re-examination forrespondent Nos.1 and 2.”

49. The above extract indicates that during the course of theproceedings before the High Court, the first respondent having realizedthat the mistake had occurred due to the fault of the invigilators whichwas not rectified, took steps to alleviate the hardship to the two students AB

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Ato the extent that was practical. In view of the benefit extended by thefirst respondent to the students, this Court held that the direction to conducta fresh examination could not be sustained.

50. In the present case, the appellant had sought a re-examinationwhere she would be allowed compensatory time as mandated by theBGuidelines for Written Examination and the NEET Bulletin 2021. Weare in agreement with the view in Vaishnavi Vijay (supra) that holdinga fresh examination is neither practicable nor proper. Holding a freshexamination will delay medical admissions and cause uncertainty andchaos. To that extent, the denial of the relief sought for conducting afresh examination for the appellant is not disturbed. At the same time,Cwe are of the view that the first respondent must factor in the possibilityof such errors occurring in the process of conducting the NEET. Themanner in which the first respondent deals with cases of serious prejudice,as occasioned in the present case, has to be decided by it as an expertagency.D

51. This Court would eschew the course of dictating the mannerin which the grievance should be rectified, leaving it to the discretion ofthe testing agency which is entrusted with the overall responsibility ofconducting the examination. The first respondent took certain steps asnoted above in Vaishnavi Vijay (supra). Similarly, in the present case,Ewe are of the categorical view that the first respondent cannot shirk orabrogate its responsibility to rectify the injustice which has been causedto the appellant. The first respondent may consider extrapolation of themarks awarded to the appellant or grant compensatory marks. Similarto the steps in Vaishnavi Vijay (supra), the first respondent could alsoconsider adopting a ‘no negative marks’ scheme. We are not restrictingFthe first respondent to only the above options and will leave the decisionon the modalities of remedying the injustice caused to the appellant tothe first respondent. The injustice which has resulted is clearly due to abreach in observing the entitlements due to the appellant under the RPwDAct 2016.G

52. During the course of the hearing, the first respondent urgedthat sixteen lakh students appeared for the NEET and hence injustice toa “one-off” student cannot be remedied. In the written submissions whichhave been filed on behalf of the first respondent, the following statementhas been submitted in regard to the candidature of the appellant vis-à-Hvis, other candidates.

“3. Re (a):

A

The Petitioner had appeared in NEET (UG) 2021 on12.09.2021 as a candidate in General (UR)-PwD Category. Shehad attempted 84 out of 180 questions. She has answered 50questions correctly and 34 questions incorrectly and, accordinglyshe has been awarded 166 marks out of 720 marks during theBresult declared on 01.11.2021. Accordingly, she has qualified inNEET (UG) 2021 and has secured the following Ranks foradmission to MBBS/BDS Courses:

• All India Rank for Counselling- 661699

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• General (UR)- 206003

• PwD- 1721

The Rank of the Petitioner has been juxtaposed with the otherPwD Candidates of NEET (UG) 2021, as follows:

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The Respondent No.1 has duly considered the case of the Petitionerto try to find out some solution including awarding the additionalproportionate marks. However, it has been observed that thereare in total 15,44,275 candidates (out of total registered candidates16,14,777) who had appeared in NEET(UG) 2021 on 12.09.2021for which result has already been declared on 01.11.2021 and AllH

A

AIndia Rank has already been forwarded on 09.11.2021 by theRespondent No.1 to the Directorate UR of Health Services, M/oHealth & Family Welfare, Govt. of India to conduct counsellingfor admission to MBBS/BDS Courses for the academic year2021-21. Therefore, any alteration in the result, at this stage, willcause serious prejudice to the numerous candidates who areBpresently ranked above the Petitioner but, would have to be placedbelow her, thereby disturbing the Ranks of other candidates. Noneof such students are before this Hon’ble Court and, may result infurther complications/litigations. Further, it may also affect thecounselling process which may result into delay in the completionCof admission process.”

53. The above statement indicates that the appellant has securedan All India Rank of 1721 out of 2684 candidates qualified in the PwDcategory. In relation to the State of Maharashtra, the appellant has securedrank 249 out of 390 candidates in the PwD category. The first respondentDhas stated that approximately 15.4 lakh candidates appeared at the NEET(UG) 2021 on 12 September 2021 for which the result was declared on1 November 2021 and the All India Rank was forwarded on9 November 2021 to the Ministry of Health and Family Welfare,Government of India to conduct counselling for admission. It wassubmitted that alteration of the result at this stage would prejudiciallyEaffect other candidates who are ranked above the appellant.

54. In essence, the above submissions boils down to the firstrespondent informing the Court that in an examination of such largeproportions where over 16 lakh students registered and over 15 lakhstudents appeared, it would not be possible to undo the injustice whichFhas been done to a single candidate. The first respondent must rememberthat all authority under the law is subject to responsibility, and above all,to a sense of accountability. The first respondent is governed by the ruleof law and by the constitutional requirement of observing fairness. Behindthe abstract number of ‘15 lakh students’ lie human lives that can beGaltered due to the inadvertent, yet significant errors of the first respondent.

55. The first respondent, as an examining body, was bound toscrupulously enforce the Guidelines for Written Examinations dated 29August 2018 which provides for specific relaxations. The appellant hassuffered injustice by a wrongful denial of these relaxations and a lack ofremedy by this Court would cause irretrievable injustice to the life of theH

student. The RwPD Act 2016 prescribing beneficial provisions for personswith specified disabilities would have no meaning unless it is scrupulouslyenforced.

A

56. In our view, the first respondent cannot be allowed to simplyget away when confronted with the situation in hand whereby injusticehas been caused to a student by standing behind the situation of a largecompetitive examination. Individual injustices originating in a wrongfuldenial of rights and entitlements prescribed under the law cannot be sentinto oblivion on the ground that these are a necessary consequence of acompetitive examination.

B

F Conclusion

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57. Accordingly, in view of the above discussion, we concludeand direct as follows:

(i) The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied; D

(ii) The appellant was wrongfully deprived of compensatoryDtime of one hour while appearing for the NEET withoutany fault of her own, despite her entitlements as a PwDand a PwBD. Accordingly, the first respondent is directedto consider what steps could be taken to rectify the injusticewithin a period of one week. Further, it shall take necessaryEconsequential measures under intimation to the DGHS;

(iii) In the future, the first respondent shall ensure that provisionswhich are made at the NEET in terms of the rights andentitlements available under the RPwD Act 2016 areclarified in the NEET Bulletin by removing ambiguity, asnoticed in the present case; F

(iv) Having due regard to the decision of this Court in VikashKumar (supra) and the statutory provisions contained inthe RPwD Act 2016, facilities which are provided by thelaw to PwD shall not be constricted by reading in the higherthreshold prescribed for PwBD; G

(v) By way of abundant caution, it is clarified that for the purposeof availing of the reservation under Section 32 of the RPwDAct 2016 or an upper age relaxation as contemplated in theprovisions, the concept of benchmark disability continuesto apply; and H

A(vi)It was brought to our notice that the second respondentwas ignorant about the facilities to which the appellant wasentitled. There was an evident confusion between theauthorities working at the first respondent as well. Thepersons working for the first respondent and exam centreslike that of the second respondent should be sensitised andBtrained, on a regular basis, to deal with requirements ofreasonable accommodation raised by PwDs.

58. The steps taken by the first respondent in furtherance ofdirection (ii) above in Paragraph 57 must be communicated to the Registryof this Court by filing a status report within a period of two weeks fromCthe date of this judgment.

59. The appeal is disposed of in the above terms.

60. Pending application(s), if any, shall stand disposed of.

D

Nidhi Jain

Appeal disposed of.

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H