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The following post from Kanchan failed to get to the list. Hence copying it
below.
Harish Kotian
Quoting:
I have had to type the entire order. Therefore a little late. Circulate it to
all those who are giving the exams on Sunday.
It is uploaded on the website of the Bombay High Court. I hope people realise
how path breaking this judgement is.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5953 OF 2014
Sujit Shinde & Anr.
.. Petitioners
Vs.
Union Public Service Commission (UPSC)
and Anr.
.. Respondents
Ms.Ankita Singhania with Ms. Kanchan Pamnani for the petitioners
Mr. V. Narayanan for respondent no. 1
Mr. Ashok Shetty with Mr. Ashok R. Varma and Mr. N. D. Sharma for respondent
nos. 2 and 3
CORAM : MOHIT S.SHAH, C.J. &
M.S.SONAK, J.
DATE : 19th
August, 2014
P.C:
(1) Both the petitioners herein are blind and are candidates at
the Civil Services Examination, 2014 to be conducted by the Union Public
Service Commission (UPSC), respondent no.1 herein. Preliminary exam is on
24th August, 2014.
(2) UPSC issued a notification dated 31st May, 2014 for a
preliminary examination of the Civil Services Examination for recruitment to
the Services and Posts mentioned in the advertisement. As regards the vacancies
for which the notification was issued, it was stated as under:
"The number of vacancies to be filled on the result of the examination is
expected to be approximately 1291 which includes 26 vacancies reserved for P.H.
Category, i.e. 12 vacancies for LDCP, 2 Vacancies for B/LV and 12 Vacancies for
the H.I. The final number of vacancies may undergo change after getting firm
number of vacancies from Cadre Controlling Authorities."
(3) Both the petitioners submitted their applications in
response to the said advertisement. Preliminary examination is to be conducted
on 24th August, 2014. The petitioners have made the following grievances in
this petition which are reiterated at the hearing:
a) Since the notification itself indicates that the number of
vacancies to be filled in on the result of the examination is approximately
1291, the number of vacancies reserved for the persons with disability ought to
have been notified as 39 @ 3% i.e. 13 vacancies for the blind or with low
vision, 13 vacancies for persons with locomotor disability or cerebral palsy
and 13 vacancies for persons with hearing impairment. It is submitted that by
reserving only 26 vacancies for persons with disability, the respondents are
committing breach of the statutory provisions in Section 33 of "the Persons
with Disabilities (Equal Opportunities, Protections of Rights and Full
Participation) Act, 1995" hereinafter referred to as the Disability Act.
b) The second grievance is about the Scribe to be permitted to appear
at the examination. It is submitted that while the Guidelines contained in the
office memorandum dated 26th February, 2013 issued by the Government of India,
Ministry of Social Justice & Empowerment, Department of Disability Affairs
permit a candidate to engage a Scribe without any restrictions on educational
qualification, marks scored, age or other restrictions, the proforma of the
declaration in the advertisement provides the educational qualification of the
Scribe as brought by the candidate should be higher than graduation.
c) Thirdly, it is submitted that the general instructions on the
notification regarding the time duration for blind candidates runs counter to
the guidelines contained in the Office Memorandum dated 26th February, 2013.
The said Memorandum provides for compensatory time of 20 minutes per hour of
examination for persons who are making use of the scribe /reader/lab assistant
but the general instructions in the advertisement provide that blind candidates
will be allowed to write the examination with the help of scribe with extra
time @ 10 minutes per hour.
d) There are also other submissions regarding other a few issues
arising in case of blind candidates appearing at such examination.
(4) Taking first contention urged on behalf of the petitioners, the learned
counsel for the petitioner has invited our attention to the provisions of
section 33 of the Disability Act and the decision of the Supreme Court in the
case of Union of India and another vs. National Federation of the Blind and
others [1] and the Office Memorandum dated 3rd December, 2013 issued by
Government of India, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel and Training. Section 33 reads as under:
"33. Reservation of posts.-Every appropriate Government shall appoint in every
establishment such percentage of vacancies not less than three per cent for
persons or class of persons with disability of which one per cent each shall be
reserved for persons suffering from-
(i)
blindness or low vision;
(ii)
hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability: Provided that the
appropriate Government may, having regard to the type of work carried on in any
department or establishment, by notification subject to such conditions, if
any, as may be specified in such notification, exempt any establishment from
the provisions of this section."
(5) In the case of National Federation of the Blind (Supra). Supreme Court
has held that Section 33 establishes vividly, the intention of the legislature
viz. reservation of 3% for differently abled persons should have been computed
on the basis of total vacancies in the strength of a cadre and not just on the
basis of vacancies available in the identified posts. After referring to the
proviso to section 33 of the Disability Act, the Supreme Court has observed as
under:
"The proviso also justifies the above said interpretation that the
computation of reservation has to be against the total number vacancies in the
cadre strength and not against the identified posts. Had the legislature
intended to mandate for computation of reservation against the identified posts
only, there was no need for inserting the proviso to Section which empowers the
appropriate Government to exempt any establishment either partly or fully from
the purview of the Section subject to such conditions contained in the
notification to be issued in the Official Gazette in this behalf. Certainly,
the legislature did not intend to give such arbitrary power for exemption from
reservation for persons with disabilities to be exercised by the appropriate
Government when the computation is intended to be made against the identified
posts."
The Supreme Court ultimately held as under:
"52 Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be computed in
case of Group A, B, C and D posts in an identical manner viz., "computing 3%
reservation on total number of vacancies in the cadre strength" which is the
intention of the legislature. Accordingly, certain clauses in the OM dated
29.12.2005, which are contrary to the above reasoning are struck down and we
direct the appropriate Government to issue new Office Memorandum(s) in
consistent with the decision rendered by this court.
53 Further, the reservation for persons with disabilities has nothing to do
with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with
respect to disabled persons.
54 We also reiterate that the decision in R.K. Sabharwal (supra) is not
applicable to the reservation for the persons with disabilities because in the
above said case, the point for consideration was with regard to the
implementation of the scheme of reservation for SC, ST & OBC, which is vertical
reservation, whereas reservation in favour of persons with disabilities is
horizontal."
Thus, the Supreme Court gave directions to the Government of
India to issue an appropriate order modifying the Office Memorandum dated 29th
December, 2005 and the subsequent Office Memorandums consistent with the order
of the Supreme Court. In compliance with the above directions, Government of
India has issued Office Memorandum dated 3rd December, 2013.
(6) Having regard to the fact that the Government
of India has already notified 1291 vacancies, in our view it is not necessary
to discuss this issue any further. No affidavit in reply has been filed on
behalf of Government of India and the stand of the UPSC in their affidavit in
reply dated 8th August,2014 is that it is for the Cadre Controlling Authorities
to certify that that 1% of the vacancies are reserved for each of the three
sub-categories of PH while reporting the relevant vacancies to UPSC. It is the
case of the UPSC that the Cadre Controlling Authorities are required to give a
certificate in a prescribed profoma to the effect that while submitting the
vacancies for IH categories, requirements of the PWD Act, 1995 and the
policy relating to reservation for persons with disabilities have been taken
care of while sending their requisitions. In the absence of any affidavit on
behalf of the Government of India and in absence of an certi
ficate of the Cadre Controlling Authority, the Respondents shall proceed on
the basis that the Respondents are required to reserve 3% of 1291 vacancies for
persons with disability, 1% each for blind persons or persons with low vision,
1% each for persons with locomotor disability or cerebral palsy and 1% each for
persons with hearing impairment. In other words, each category is entitled to
have reservation of 13 vacancies aggregating to total 39 vacancies to be
reserved for persons with disability, out of 1291 vacancies.
7. The learned counsel for the Government of India sought to contend that the
question of working out the exact number of candidates will arise at the time
of appointment and not at this stage. We are not inclined to accept this
submission for the simple reason that the UPSC will be preparing the select
(6) list / wait list of successful candidates on the basis of the vacancies
reserved for a particular category. Even before preparing the select list /
wait list, UISC has to decide how many candidates should be called for the main
examination and how many should be called for the oral interview. At all
stages, also, UPSC would have to take into account the number of vacancies
which have to be reserved for each category. We direct that UPSC as well as
Government of India shall proceed on the basis that number of vacancies
reserved for persons with disability is 39. 1/3rd being reserved for each
category as per the provisions of Section 33 of the Disability Act.
(7) Coming to the next question about educational qualification of the
Scribe, the learned counsel for the petitioner relies on Guideline V in the
Office Memorandum dated 26th Februaru,2013 of Government of India :
"V Criteria like educational qualification, marks scored, age or other
such restrictions for the scribe/reader/lab assistant should not be fixed.
Instead, the invigilation system should be \\ strengthened, so
that the candidates using scribe/reader/lab do not indulge in malpra like
copying and cheating during the examination."
It is true that the above Guidelines does not contemplate imposing any
restriction on the educational qualification of the Scribe to be engaged by the
candidate. However, in the affidavit in reply, UPSC has justified its stand of
prescribing a maximum educational qualification which a Scribe can possess. It
is submitted that for Civil Services, preliminary has an Objective Type Test
where the correct answer from four alternatives is required to be marked by
shading the appropriate circle. Therefore, a Scribe who is of Graduate or
undergraduate level can effectively assist the Visually Challenged candidate.
We may note that before the Guidelines were prepared, the Government of India
had sought comments of UPSC on the recommendation at the meeting held on 19th
February, 2008 for framing a policy of written examination for persons with
disability. The relevant part of the UISC Minutes read as under:
Recommendations Comments of UPSC from the points of view of Examination
conducted by them
R.No.V:- Criteria like educational qualification, marks scored, age or other
such restrictions for scribe/reader/lab assistant should n fixed. Instead, the
invigilation should be strengthened, so that the candidates using
scribe/reader/lab assistant don't indulge in mal-practices like copying and
cheating during the examination. As per the standing instructions of
UPSC, there are certain eligibility criteria for thee scribes for visually
impaired candidates. The eligibility criteria ought to be retained because the
objective of providing scribe is to aid the disabled in writing his/her answers
A graduate or under-graduate can work as a scribe. If this prescription is
removed, the candidates may bring a scribe who is more qualified and who can
aid the candidate in not only writing the answers spelt out by the candidate
but also improving or correcting the wrong answers. Even with a greater degree
of invigilation it would not be possible to thward such attempts in the objecti
ve type papers to a large extent. It is felt that no amount of invigilation
would effectively obviate such malpractices in the conventional papers, which
are descriptive.
R.No.VI:- There should also be flexibility in accommodating last movement
changes in scribe/reader/lab assistant in case of emergency. Similarly, the
candidates should be allowed to take more than one scribe/reader or writing
different papers especially for languages. With reference to item
no.(VI) of the recommendations, it may be stated that for CS (M) Examination
each candidate is provided with two scribes Commission/Coordinating/Supervisor
for writing the papers so that in case the candidate does not find one scribe
suitable, he/she can take help from the other scribe. In addition to above,
each paper one or two scribes are also kept reserve for meeting any unforeseen
situation. In case of CS (P) Examination, a pool of reserve
scribes so kept so that if the candidate does not find one scribe suitable,
he/she can ask for a replacement of scribe. Union Public Service Commission has
not received any complaint from any candidate on this account so
far.
(10) Thus, the comments of the UPSC, that a candidate without any
restriction on the educational qualification of the scribe may enable a
candidate who is not only writing the answers spelt out by the candidate but
also improving or correcting the wrong persons was taken into consideration by
the Government of India before framing the Guidelines which are found in the
Office Memorandum dated 26th February,2013 at Exhibit 'B' to the Writ Petition.
(11) We are, therefore, of the view that the Guideline V in the above
Office Memorandum cannot be allowed to be whittled down as a general rule, as
contended on behalf of the UPSC. Even so, while accepting the petitioners'
contention that Guideline V does not contemplate general restriction on
educational qualification of the scribe, in the facts and circumstances of the
case, since we are concerned with the prelimnary examination being conducted by
the UPSC where the only objective type questions are going to be asked and the
candidate is only required to mark one out of four alternate answers,
permitting the petitioners who are visually impaired, to engage scribe with the
qualification of graduation cannot said to be unreasonable.
(12) As regard the third contention, about the duration of the
examination where the blind candidates are permitted to engage scribe, the
petitioners are on a firm ground. Guideline XI in the Office Memorandum dated
26th February 2013 reads as under:
"XI The word "extra time or additional time" that is being currently used
should be changed to "compensatory time" and the same should not be less than
20 minutes per hour of examination for persons who are making use of
scribe/reader/lab assistant. All the c andidates with disability not availing
the facility of scribe may be allowed additional time of minimum of one hour
for examination of 3 hours duration which could further be increased on case to
case basis."
(emphasis
supplied)
Inspite of the aforesaid categorical guideline, in their notification dated
31st May, 2013 UPSC provided only additional 10 minutes per hour. The said
instruction cannot be allowed to operate and UPSC shall grant the candidates
engaging the services of scribes to have additional 20 minutes per hour and
necessary instruction shall be issued to all the examination centers
immediately.
(13) The learned counsel for the petitioner has made submissions on a
few other issues like requirement of a candidate with low vision to have larger
fonts in the examination paper. Guideline VII specifically provides as under:
"VII Persons with disabilities should be given the option of choosing the
mode for taking the examinations i.e. Braille or in the computer or in large
print or even by recording the answers as the examining bodies can easily make
use of technology to convert question paper in large prints,e-text, or Braille
and can also convert Braille text in English or regional languages."
(emphasis
supplied)
(14) The learned counsel for the petitioner invited our attention to
the proforma declaration to be submitted at the time of submitting applications
in response to the notification. The proforma declaration does not contain any
heading indicating that persons with low vision are at liberty to request for
larger fonts or larger print. We are, therefore, of the view that UPSC shall
make necessary modification in the proforma declaration for future examination
but as far as the examination scheduled to be held on 24th August, 2014 is
concerned, and also for the main examination to be conducted hereafter, UPSC
shall publish a notice on its website indicating that candidates with low
vision are at liberty to request for question papers with larger print or
larger fonts or any other request as per the Guidelines. This shall be done
immediately and UPSC shall also permit such candidates to make such request
through emails.
(15) Guideline XII provides as under:
"XII The candidates should be allowed to use
assistive devises like talking calculator (in cases where calculators are
allowed for giving exams), tailor frame, Braille slate, abacus, geometry kit,
Braille measuring tape and augmentative communication devices like
communication chart and electronic devices."
(16) It is directed that the UPSC shall follow the above Guidelines and
all other Guidelines contained in the office Memorandum dated 26th February,
2013.
(17) The Petition is allowed in the above terms.
Parties to act on authenticated copy of this order which can be uploaded on the
website.
CHIEF JUSTICE
(M.S.SONAK, J.)
________________________________
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