Omkar vs The Union Of India

2024 INSC 775 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10611 OF 2024

Omkar Ramchandra Gond …Appellant (s) Versus

The Union of India & Ors. ...Respondent(s)

JUDGMENT

K.V. Viswanathan, J.

1. Omkar Ramchandra Gond (the appellant) grew up in

a middle-class family in the city of Latur in Maharashtra

State. His father is a government servant. The appellant had

a creditable academic performance in his tenth standard

scoring 97.2%. He cleared his school final in the first

division. The appellant aspired to be a doctor. Nothing wrong Signature Not Verified Digitally signed by Deepak Singh Date: 2024.10.15 14:09:52 IST Reason: with it, except that he had to surmount a few legal hurdles

enroute.

1

2. Admittedly, the appellant has speech and language

disability and is diagnosed with Hypernasality with

Misarticulation IN K/C/O Repaired Bilateral CLEFT of

palate. The appellant is certified to have 45% (in some

reports, it was mentioned as 44%) permanent disability as per

the Disability Certificate dated 18.05.2017.

3. The appellant applied for the National Eligibility Cum

Entrance Test NEET (UG), 2024 for admission to MBBS

Course from the category of Persons with Disability (for

short “PwD”) and Other Backward Classes (OBC) on

18.02.2024.

4. The application form had a disclaimer clause which

stated that the eligibility under the PwD Category was purely

provisional and was to be governed as per the National

Medical Commission (NMC) guidelines regarding admission

of students with “specified disabilities” under the Rights of

Persons with Disabilities Act, 2016 (for short “RPwD Act”).

2

5. The appellant appeared for the NEET (UG) held on

05.05.2024 and qualified the entrance examination. The

Schedule for Centralized Admission Process (CAP) Round-I

counseling for admission was notified on 20.08.2024. The

appellant applied for the centralized admission process and

claimed reservation under the OBC and the PwD category.

In the provisional merit list published on 26.08.2024, the

name of the appellant figured at 42091. Under the

Information brochure, candidates with disability have to

submit a disability certificate issued for the year 2024 and

have to undergo medical examination at the Disability

Assessment Board.

6. The appellant approached the Designated Disability

Certification Centre at Sir JJ Group of Hospitals on

16.08.2024. The Certification Centre certified that the

appellant has physical disability of speech and language of

44% (in some reports, it was mentioned as 45%) and

recorded that based on quantification of disability, the 3 appellant was not eligible to pursue the medical course as per

NMC norms. In view of that, the appellant was rendered

ineligible person to obtain PwD reservation or to pursue

medical course as per the NMC Gazette notification.

7. The Board of Governors of the Medical Council of

India, the previous avatar of the NMC, had amended the

Graduate Medical Education Regulations, 1997, vide

notification dated 13.05.2019. The existing Appendix “H”

was substituted with Appendix “H-1” providing for

guidelines regarding admission to students with “specified

disabilities” under the RPwD Act with respect to admission

in MBBS course. As per clause 1(D) thereof, persons who

have equal to or more than 40% disability were not eligible

for Medical Course. The relevant clause of the schedule is

extracted hereinbelow:-

4

Type of Disability Range Disabilities Eligible for Eligible for Not Medical Medical Eligible Course, Not Course, for Specified Disability Eligible for Eligible for Medical PwD Quota PwD Quota Course

D. Speech Organic/neurological Less than Equal to & language causes 40% Disabil- or more disability$ ity than 40% Disability

$ Persons with Speech Intelligibility Affected (SIA) shall be eligible to pursue MBBS Courses, provided Speech Intelligibility Affected (SIA) score shall not exceed 3 (three), which is 40% or below.

Persons with Aphasia shall be eligible to pursue MBBS Courses, provided Aphasia Quotient (AQ) is 40% or below.

Proceedings before the High Court:

8. Disappointed but by no means dispirited, the appellant

moved the High Court of Judicature at Bombay in writ

petition being W.P. Stamp No. 24821 of 2024 contending

that the Medical Council of India/NMC is not empowered to

lay down eligibility criteria in such a manner as to altogether

take away the benefits under the RPwD Act. Challenging the

notification dated 13.05.2019 as well as the certificate issued

by the Disability Certification Centre rendering him 5 ineligible for pursuing the MBBS Course only on the ground

of disability exceeding 40% without anything more, the

appellant also sought interim relief permitting him to

participate in the centralized admission process in admission

to MBBS Course without considering the certificate issued

by the Disability Certification Centre - Sir J.J. Group of

Hospitals, Mumbai pending final disposal of the writ petition.

9. The appellant contended that there is nothing which

would show he is not competent to pursue the course. The

appellant also alleged discrimination. By the order of

29.08.2024, the High Court simply stood over the matter to

19.09.2024 and did not pass any interim order.

10. Running against time as the last date for submitting the

choice for admission was 29.08.2024 and since the results of

the CAP Round-I were to be declared on 30.08.2024, the

appellant with great alacrity moved this Court seeking urgent

reliefs.

6 Interim order by this Court:

11. When the matter came up on 02.09.2024, this Court,

after hearing the counsel for the NMC, passed an order

directing that the seat which the appellant would have been

entitled, if rendered eligible, be kept vacant. This Court also

directed the Dean, Byramjee Jeejeebhoy Government

Medical College and Sassoon General Hospital, Pune to

constitute a Medical Board consisting of one or more

specialists, having domain expertise pertaining to the

appellant’s disability. The Medical Board was to specifically

examine whether the speech and language disability of the

appellant would come in his way of pursuing the MBBS

Degree Course. This course of action was previously

adopted in another case with similar facts in Writ Petition (C)

No. 793 of 2022 (Vibhushita Sharma vs. Union of India &

Ors).

7 Opinion of the Medical Board:

12. Ultimately, since the B.J Government Medical College

did not have the facility, the task was entrusted to Maulana

Azad Medical College, Government of NCT of Delhi. The

report has since been received and the Medical Board has

opined that the Appellant’s speech and language disability

would not come in the way of the appellant pursuing the

MBBS Course, which is extracted hereinbelow:-

“As directed by the Hon’ble Supreme Court of India, the medical examination of the petitioner, namely, Sh. Gond Omkar Ramchandra was conducted in the department of ENT(Room No. 609) by the above mentioned members of the Medical Board. Findings of the examinations are attached (OPD-116574108). The Board is of the opinion that the Speech & Language disability of the Petitioner namely Sh. Gond Omkar Ramchandra would not come in the way of pursuing the MBBS Course.” (Emphasis Supplied)

13. We have heard Mr. S. B. Talekar, learned counsel for the

appellant and Mr. S.D. Sanjay, learned Additional Solicitor

General for the Union of India and Mr. Gaurav Sharma,

learned senior counsel for the NMC.

8

14. This Court made the following order on 18.09.2024:-

“1. Leave granted.

2. For the reasons to be recorded separately, the appeal is allowed.

3. The appellant is directed to be admitted against the seat, which was directed to be kept vacant as per the orders passed by this Court.”

Question before the Court:

15. Merely because the disability is quantified at 44%/45%,

should the appellant be disqualified to obtain admission

under the PwD Category for the MBBS Course?

Analysis and Reasoning:

16. Article 41 in the Directive Principles of State Policy

reads as under:

“41. Right to work, to education and to public assistance in certain cases.-

The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

(Emphasis Supplied)

9 As is clear, it is the Constitutional goal of our nation that

within the limits of its economic capacity and development,

the State was to make effective provisions for securing the

right to education including for the persons with disabilities.

17. The Rights of Persons with Disabilities Act, 2016

replaced the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation), Act 1995. The

2016 Act was a sequel to the United Nations Convention on

the Rights of Persons with Disabilities. The Convention laid

down principles to be followed by the States Parties for

empowerment of persons with disabilities. The Convention

laid down the following principles for empowerment of

persons with disabilities, which the Act seeks to implement:-

(i) respect for inherent dignity, individual autonomy

including the freedom to make one’s own choices, and

independence of persons;

(ii) Non-discrimination;

(iii) full and effective participation and inclusion in society;

10 (iv) respect for difference and acceptance of persons with

disabilities as part of human diversity and humanity;

(v) equality of opportunity;

(vi) accessibility;

(vii) equality between men and women;

(viii) respect for the evolving capacities of children with

disabilities and respect for the right of children with

disabilities to preserve their identities;

(Emphasis supplied)

18. The RPwD Act has several salutary provisions. For the

purpose of our case, special emphasis needs to be provided

on Sections 2(m), 2(r), 2(y), 3, 15 and 32. They are extracted

herein below.

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

2(r) "person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in 11 measurable terms, as certified by the certifying authority;

2(y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;

3. Equality and non-discrimination.-

(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment.

(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.

(4) No person shall be deprived of his or her personal liberty only on the ground of disability.

(5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.

15. Designation of authorities to support.- (1) The appropriate Government shall designate one or more authorities to mobilise the community and create social awareness to support persons with disabilities in exercise of their legal capacity.

(2) The authority designated under sub-section (1) shall take measures for setting up suitable support 12 arrangements to exercise legal capacity by persons with disabilities living in institutions and those with high support needs and any other measures as may be required.

32. Reservation in higher educational institutions.-(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.

19. It is in pursuance of the 5% reservation provided for the

persons with disabilities that the appellant applied for the

MBBS course under the said category. He cleared the exam,

however, was denied admission on the ground that his

quantified disability was 44%/45%.

20. The Appendix H-I extracted above provides a peculiar

scenario. While people with less than 40% disability are not

eligible for PwD quota, though they can pursue the Medical

Course, persons with equal to or more than 40% disability are

not eligible for the medical course. Read literally, while

persons with speech and language disability with less than

13 40% are not entitled to the reserved quota, if they have 40%

or more disability they are rendered ineligible for the medical

course. The column under the guidelines “Eligible for

Medical Course, Eligible for PwD quota” is left blank

reinforcing the absurd position that under this category no

one is rendered eligible for the 5% reserved quota. Certainly

that cannot be the legal position.

21. In any event, adopting a purposive interpretation of the

RPwD Act and, more particularly, of the provisions extracted

hereinabove, we are of the opinion that merely because of the

quantification of the disability for speech and language at

40% or above, a candidate does not forfeit his right to stake a

claim for admission to course of their choice. We say so for

the reason that any such interpretation would render the

clause in Appendix H-1 under the Graduate Medical

Education Regulations of the Medical Council of India

(precursor of the National Medical Commission) dated

13.05.2019, over broad for treating unequals equally. 14

22. In State of Gujarat and Another vs. Ambica Mills Ltd.,

Ahmedabad and Another, (1974) 4 SCC 656, it was held

that an over-inclusive classification includes not only those

who are similarly situated with respect to the purpose but

others who are not so situated as well. Among those with

disability percentage of 40% or above in the category of

speech and language disabilities, there will be individuals

like the appellant to whom the disability may not come in the

way of pursuing the particular educational course in question.

Lumping together persons with benchmark disabilities who

can pursue the educational course with those with the same

disabilities who, in the opinion of the Medical Board, cannot

pursue the course would tantamount to over inclusion. This is

precisely what Article 14 frowns upon.

23. We are constrained to hold that the Appendix H-1 in the

notification of 13.05.2019, issued by the Medical Council of

India cannot be interpreted to mean that merely because on

the quantification of the disability percentage exceeding the 15 prescribed limits, a person automatically becomes ineligible

for the medical course.

24. Dealing with an absolute bar imposed on women in

seeking criteria or command appointments, this Court, while

finding that such prescription fell foul of Article 14 held that

implicit in the guarantee of equality is the principle that

where the action of the State does differentiate between two

classes of person, it does not differentiate them in an

unreasonable or irrational manner. This Court further held

that the right to equality is a right to rationality and whether a

particular candidate should or should not be granted, could be

a matter for the competent authority to decide but a blanket

non-consideration of women for criteria or command

appointments absent an individuated justification was not

sustainable in law (See Secretary, Ministry of Defence v.

Babita Puniya and Others, (2020) 7 SCC 469 (para 85)

25. A Constitutional Court examining the plea of

discrimination is mandated to consider whether real equality 16 exists. This Court is not to be carried away by a projection of

facial equality. Viewed at first blush, the regulation providing

that all persons with 40% or more disability are uniformly

barred from pursuing the medical course in the category of

speech and language disability, may appear non-

discriminatory. But here too, appearances can be deceptive.

The Court of law is obliged to probe as to whether beneath

the veneer of equality there is any invidious breach of Article

14.

26. This Court in Khandige Sham Bhat and Anr vs.

Agricultural Income-tax Officer, Kasaragod, and Anr, AIR

1963 SC 591 observed as under:

“7. Though a law ex facie appears to treat all that fall within a class alike, if in effect it operates unevenly on persons or property similarly situated, it may be said that the law offends the equality clause. It will then be the duty of the court to scrutinise the effect of the law carefully to ascertain its real impact on the persons or property similarly situated. Conversely, a law may treat persons who appear to be similarly situate differently; but on investigation they may be found not to be similarly situate. To state it differently, it is not the phraseology of a statute that governs the situation but the effect of the law that is decisive. If there is equality and 17 uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment….”

27. Similarly, in Lieutenant Colonel Nitisha & Ors. vs.

Union of India & Ors., (2021) 15 SCC 125, this Court

observed as under:

“52. We must clarify here that the use of the term “indirect discrimination” is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion”

28. In fact, the “One Size Fits All” theory in deciding

eligibility of persons with disability to avail the benefit of

reserved seats was questioned first in Ravinder Kumar

Dhariwal & Anr. vs. Union of India and Others, (2023) 2

SCC 209 wherein this Court had the following to say: -

“77. Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical among other factors, the one-size-fits-all approach can never be used to identify the disability of a person. Disability is not universal but is an individualistic conception based on the impairment that a person has along with the barriers that they face. Since the barriers that every person faces are personal to their 18 surroundings — interpersonal and structural, general observations on “how a person ought to have behaved” cannot be made.”

29. Close on the heels of Ravinder Kumar Dhariwal

(supra) came an order of this Court in Writ Petition (C) No.

856 of 2023 [Bambhaniya Sagar Vasharambhai vs. Union

of India & Ors.]. In the said writ petition, by order dated

22.09.2023, in Para 13, this Court opined as under:

“13. In the opinion of this Court in cases even of specified disabilities, in all cases the standard of 40% may result in “one size fit all” norm which will exclude eligible candidates. The Union, therefore, shall consider the steps to mitigate such anomalies, because a lower extent of disabilities bar benefits and at the same time render them functional, whereas higher extent of disability would entitle benefits, but also result in denying them the benefit of reservation. The National Commission and the Central Government are directed to consider the problem and work out suitable solutions to enable effective participation.”

30. Though ultimately Writ Petition (C) No. 856 of 2023

was dismissed on 31.10.2023, the issue with regard to finding

a suitable solution to facilitate the effective participation of

persons with disabilities by the Central Government, as

19 suggested in the order of 22.09.2023, was directed to be

complied with.

31. It must be said to the credit of the Union of India that

the directions of this Court in Bambhaniya (Supra) was

carried forward and the Government of India through the

Ministry of Social Justice and Empowerment issued a

communication dated 25.01.2024 to the National Medical

Commission.

32. The communication was placed on record by Mr. S.D.

Sanjay, learned ASG. The Government of India mentioned in

the communication that the National Medical Commission

was obliged to take into account the developments in aids

and assistive devices and also in other technologies which are

capable of reducing the effects of disability and ensure that

the statutory requirements of RPwD Act are followed in letter

and spirit. It was further mentioned in the communication

that, pursuant to deliberations, the National Medical

Commission was required to take action of providing a drop-

20 down menu or a mandatory category in the electronic

application form. That drop down menu or the mandatory

category was to mention which categories and percentage of

disability are suitable for pursuing the MBBS Course, and, if

necessary, the disability categories in the form should also

show symptoms which would normally be excluded by the

medical board. It was also stated therein that a Meeting

should be held with the National Testing Agency and proper

classification of disabilities should be made in the application

form so as to ensure that once the candidate was allowed to

take the examination, the candidate was not denied admission

merely on the ground of disability. It was further mentioned

that the regulations of NMC should immediately be

reviewed.

33. Attention was also drawn of the National Medical

Commission to the position obtaining in the Department of

Personnel and Training (DoPT), wherein functional

classification and physical requirements consistent with 21 requirements of the identified service/posts are being worked

out for Civil Services. It was directed that on the lines of the

exercise by DoPT, NMC should also work out functional

classifications and physical requirements consistent with the

requirements of medical profession and review its regulations

accordingly. It was ordered that NMC should sensitize all the

colleges with respect to reservation criteria for persons with

benchmark disabilities as per the RPwD Act and also towards

the requirements of such candidates once admitted.

Suggestion was made for formation of Appellate Body

against the decisions of the Medical Boards.

(Emphasis supplied)

34. We commend the Union of India, for having issued the

communication dated 25.01.2024 through the Ministry of

Social Justice and Empowerment. We also deem it

appropriate to extract the communication:-

“Subject: Compliance of Hon'ble Supreme Court order dated 22.09.2023 in WP (C) 856 of 2023 in the matter of Bambhaniya Sagar Vashrambhai vs UOI and ors – reg

22 Sir, I am directed to refer to the captioned Court case and to your letter dated 13.10.2023 and to say that the Central Government has enacted the Rights of Persons with Disabilities Act. 2016 which came into effect on 19.04.2017. Section 32 of the said Act provides that (1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities (2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.

Persons with Benchmark disability is defined under Section 2(r) as a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.

2. It is also stated that at least 5% reservation to persons with benchmark disabilities in higher education is a statutory provision and denial of this benefit to eligible candidates is violation of a statutory provision. It is also a point to be noted that extending this facility to persons with disabilities having less than 40% disability would not qualify as fulfilment of statutory obligations. The Government is also cognizant of the challenges that exist in balancing the statutory rights of persons with benchmark disabilities viz a viz strenuous requirement of the medical profession. NMC is therefore requested to take into account the developments in aids and assistive devices and also in other technologies which are capable of reducing the effects of disability and ensure that the statutory requirements of RPwD Act, 2016 are followed in letter and spirit.

23

3. Further, it may be recalled that, in pursuance to your letter dated 13.10.2023 vide which certain suggestions have been made to address the issues faced by PwDs, a meeting was held on 21.12.2023 under the Chairpersonship of Joint Secretary, Policy. Draft Minutes of the meeting were issued on 26.12.2023 upon which comments were received from NMC and DGHS. In pursuance of these comments, the matter was further considered in the Department and the following emerged:

i. While filling up the NEET electronic form by PwDs, NMC there must be a drop down or a mandatory category to take which should mention which categories and action percentage of disability are suitable for pursuing the MBBS course. If it is necessary, the disability categories may also show symptoms which would normally be excluded by the medical board. Such form should be accessible.

NMC may also consider linking this form to DEPwD's UDID portal i.e. www.swavlambancard.gov.in ii. A meeting should be done with National Testing Agency and proper classification of disabilities should be made in application forms so as to ensure that once the candidate is allowed to take the examination, she/he will not be denied admission merely on the ground of disability.

iii. The regulations issued by NMC regarding admission of students with specified disabilities must be immediately reviewed. In this context, reference may be taken from DoPT wherein functional classification and physical requirements (abilities/disabilities) consistent with requirements of the identified service/posts are being worked out for Civil Services. On the lines of this exercise by DoPT, NMC should also work out functional classifications and physical requirements (abilities/disabilities) consistent with the requirements of medical profession and review its regulations accordingly. While carrying out this exercise, NMC should also take into account assessment guidelines dated 04.01.2018 and amendments made thereto.

iv. The NMC should sensitize all the colleges with respect to reservation criteria for persons with benchmark disabilities (disability of 40% or more) as per the RPwD Act, 2016 and also towards the needs of such candidates once admitted.

24 v. The availability of medical boards in the country DGHS should be increased and there must be minimum 1 to take medical board in each State and UTs for proper action medical examination of the students who have passed the examination. Further, larger States/UTs should have sufficient number of such medical boards to streamline the process.

vi. In case the PwD wants to challenge any decision of the medical board with regard to admission, an appellate body at the level of DGHS may be formed.

vii. All India Institute of Medical Sciences at all places should be designated for issuing certificates of eligibility for attaining medical education.

In view of the above, NMC and DGHS is requested to take appropriate action and a report may be sent to this Department.”

35. We have no reason to doubt that the National Medical

Commission will expeditiously comply with the requirements

in the communication of the Ministry of Social Justice and

Empowerment dated 25.01.2024. In any event, we direct that

the needful be done by the National Medical Commission

before the publication of the admission brochure for the

academic year 2025-26.

36. In fact, a perusal of the amendment notification dated

13.05.2019 and the Guidelines at Appendix H-1 would

indicate that with regard to some categories of Disabilities

particularly, Locomotor Disability, including specified 25 disabilities like Leprosy cured person, Cerebral Palsy,

Dwarfism, Muscular Dystrophy, Acid attack victims and

other such as Amputation, Poliomyelitis etc. under the

column “Eligible for the Medical Course,Eligible for PwD

Quota” the following finds mention:-

“40%-80% disability Persons with more than 80% disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices, if it is being used, to see if it is brought below 80% and whether they posses sufficient motor ability as required to pursue and complete the course satisfactorily.” (Emphasis supplied)

37. Similarly, for specific learning disabilities, Perceptual

disabilities, Dyslexia, Dyscalculia, Dyspraxia under the

column “Eligible for Medical Course, Eligible for PwD

Quota”, it is mentioned as follows”

“Equal to or more than 40% disability and equal to or less than 80%.

But selection will be based on the learning competency evaluated with the help of the remediation/assisted technology/aids/infrastructural changes by the Expert Panel.”

26

38. We are hopeful that in the revised regulations and

guidelines which the National Medical Commission will

issue, an inclusive attitude will be taken towards persons with

disabilities from all categories furthering the concept of

reasonable accommodation recognized in the RPwD Act. The

approach of the Government, instrumentalities of States,

regulatory bodies and for that matter even private sector

should be, as to how best can one accommodate and grant the

opportunity to the candidates with disability. The approach

should not be as to how best to disqualify the candidates and

make it difficult for them to pursue and realize their

educational goals.

39. We have also examined the latest notified Guidelines

for assessing the extent of Specified Disabilities dated

14.03.2024, which deals with the method for ascertaining the

percentage of disabilities. In Clause 20.3.3, under the

Computation of percentage Speech Disability, the following

table is provided:-

27

“20.3.3. Computation of percentage Speech Disability

(a) Speech Intelligibility Test:

The verbal output of person should be evaluated using Perceptual Speech Intelligibility Rating Scale [AYJNISHD (D), 2022] (Appendix IV) and percentage of Speech Intelligibility Affected (SIA) to be measured based on score as the table given below:

Point Description of Speech Sample Percentage Scale of Disabil- ity 1 Normal 0-15 2 Can understand without difficulty, however, 16-30 feel speech is normal 3 Can understand with little effort occasionally 31-39 need to ask for repetition 4 Can understand with concentration and effort 40-55

especially by sympathetic listener, require a minimum of two or three repetition.

5 Can understand with difficulty and concentra- 56-75 tion by family but not others 6 Can understand with effort if content is known 76-89 7 Cannot understand at all even when content is 90-100 known

(Emphasis supplied)

To illustrate, it will be seen that a person with 40 to 55%

speech disability is one who “Can understand with

concentration and effort” especially by a sympathetic

listener; require a minimum of 2 or 3 repetitions. In fact, for

the entire range, this is the criterion.

40. It is in matters like this that the principles of reasonable

accommodation should come into full play. Section 2(y) of 28 the RPwD Act, defines “reasonable accommodation” to mean

necessary and appropriate modification and adjustments,

without imposing a disproportionate or undue burden in a

particular case, to ensure to persons with disabilities the

enjoyment or exercise of rights equally with others. The

concept of reasonable accommodation would encompass

within itself the deployment of a purposive and meaningful

construction of the NMC Regulations of 13.05.2019 read

with the Appendix H-1 guidelines in a manner as to further

the objectives of the RPwD Act. The reasonable

accommodation as defined in Section 2(y) of the RPwD Act

should not be understood narrowly to mean only the

provision of assisting devices and other tangible substances

which will aid persons with disabilities. If the mandate of the

law is to ensure a full and effective participation of persons

with disabilities in the society and if the whole idea was to

exclude conditions that prevent their full and effective

participation as equal members of society, a broad 29 interpretation of the concept of reasonable accommodation

which will further the objective of the RPwD Act and Article

41 of the Directive Principles of State Policy is mandated.

41. This concept of reasonable accommodation has come in

for judicial interpretation in Vikash Kumar v. UPSC &

Others, (2021) 5 SCC 370 wherein this Court held that the

principle of reasonable accommodation captures the positive

obligation of the State and private parties to provide

additional support to persons with disabilities to facilitate

their full and effective participation in society. In Para 44, it

was held as under.

“44. The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality—are an obligation as a society—to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to 30 remember R.M. Lodha, J's (as he then was) observation in Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383, where he stated : (SCC p. 387, para 9) “9. … In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic.”

42. Thereafter, in the said judgment, this Court held in para

62, 63 and 65 as under.

“62. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals' dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realisation of these ends”.

63. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence — whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates

31 is “reasonable” because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence.

65. Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated. The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature….”

43. It should be borne in mind that the RPwD Act which was

enacted to give effect to the United Nations Convention on

Rights of Persons with Disabilities - was with the objective

of granting persons with disabilities full and effective

participation and inclusion in society, grant them equal

opportunity and to show respect for their inherent dignity,

individual autonomy including the freedom to make their

own choices.

32

44. This Court in Jeeja Ghosh & Anr. v. Union of India &

Ors., (2016) 7 SCC 761 observed as under :

“40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti- discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation…” (Emphasis supplied)

45. In view of this mandate, while interpreting the RPwD

Act and the agnate regulations, one must keep in mind the

background and purpose for which the law was enacted. (See

U.P. Bhoodan Yagna Samiti, U.P. v. Braj Kishore and

others, (1988) 4 SCC 274). In the said judgment, quoting

33 from Lord Denning in “The Discipline of Law”, this Court

held as under:

“15. When we are dealing with the phrase “landless persons” these words are from English language and therefore I am reminded of what Lord Denning said about it. Lord Denning in “The Discipline of Law” at p. 12 observed as under: [ Quoting from his decision in Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481] “Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this, or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ...”

16. And it is clear that when one has to look to the intention of the legislature, one has to look to the circumstances under which the law was enacted. The preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at p. 10, observed as under:

“At one time the Judges used to limit themselves to the bare reading of the statute itself — to go simply by the 34 words, giving them their grammatical meaning, and that was all. That view was prevalent in the 19th century and still has some supporters today. But it is wrong in principle. The meaning for which we should seek is the meaning of the statute as it appears to those who have to obey it — and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the statute does not come to such folk as if they were eccentrics cut off from all that is happening around them. The statute comes to them as men of affairs — who have their own feeling for the meaning of the words and know the reason why the Act was passed — just as if it had been fully set out in a preamble. So it has been held very rightly that you can inquire into the mischief which gave rise to the statute — to see what was the evil which it was sought to remedy.

It is now well settled that in order to interpret a law one must understand the background and the purpose for which the law was enacted…” (Emphasis supplied)

46. Disabilities Assessment Boards are not monotonous

automations to just look at the quantified benchmark

disability as set out in the certificate of disability and cast

aside the candidate. Such an approach would be antithetical

to Article 14 and Article 21 and all canons of justice, equity

and good conscience. It will also defeat the salutary

objectives of the RPwD Act. The Disabilities Assessment

Boards are obliged to examine the further question as to

35 whether the candidate in the opinion of the experts in the

field is eligible to pursue the course or in other words,

whether the disability will or will not come in the way of the

candidate pursuing the course in question.

47. The concept of “inclusive education” has been elucidated

in Avni Prakash v. National Testing Agency, (NTA) and

others (2023) 2 SCC 286. This Court held as under.

“40. Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education. The Convention on Rights of Persons with Disabilities recognises that inclusive education systems must be put in place for a meaningful realisation of the right to education for PwD. Thus, a right to education is essentially a right to inclusive education. In India, the RPwD Act, 2016 provides statutory backing to the principle of inclusive education. Section 2(m) defines “inclusive education” as:

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

48. While interpreting the Regulations and Guidelines, as

provided in Appendix H-1 to the notification dated

13.05.2019, as they stood for the academic year 2024-25, we 36 are constrained, keeping in mind the salutary object of the

RPwD Act and Article 41 of the Directive Principles of State

Policy, to direct that mere existence of benchmark disability

of 40% or above (or such other prescribed percentages

depending on the disability) will not disqualify a candidate

from being eligible for the course applied for. The Disability

Assessment Boards assessing the candidates should

positively record whether the disability of the candidate will

or will not come in the way of the candidate pursuing the

course in question. The Disability Assessment Boards should

state reasons in the event of the Disability Assessment Board

concluding that candidate is not eligible for pursuing the

course.

49. The Disability Assessment Boards will, pending

formulation of appropriate Regulations by the NMC,

pursuant to the communication of 25.01.2024 by the Ministry

of Social Justice and Empowerment, keep in mind the

37 salutary points mentioned in the said communication while

forming their opinion.

50. Pending creation of the Appellate body, we further

direct that such decisions of the Disability Assessment

Boards which give a negative opinion for the candidate will

be amenable to challenge in judicial review proceedings.

The Court seized of the matter in the judicial review

proceedings shall refer the case of the candidate to any

premier medical institute having the facility for an

independent opinion and relief to the candidate will be

granted or denied based on the opinion of the said medical

institution to which the High Court had referred the matter.

51. Before we part, we will do well to recollect that

acclaimed Bharatanatyam dancer Sudha Chandran, Arunima

Sinha who conquered Mount Everest, prominent sports

personality, H. Boniface Prabhu, entrepreneur Srikanth Bolla

and Dr. Satendra Singh, the founder of ‘Infinite Ability’, are

some of the shining daughters and sons from a long and 38 illustrious list of individuals in India who scaled

extraordinary heights braving all adversities.

52. The world would have been so much the poorer if

Homer, Milton, Mozart, Beethoven, Byron and many more

would not have been allowed to realize their full potential.

Distinguished Indian Medical Practitioner Dr. Farokh Erach

Udwadia in his classic work “The Forgotten Art of Healing

and Others Essays’ under the Chapter ‘Art and Medicine’

rightly extolls their extraordinary talent, and of the many

more similarly circumstanced.

Conclusion and Directions:

53. For the reasons set out hereinabove,

(i) We hold that quantified disability per se will not dis-

entitle a candidate with benchmark disability from

being considered for admission to educational

institutions. The candidate will be eligible, if the

Disability Assessment Board opines that

notwithstanding the quantified disability the candidate 39 can pursue the course in question. The NMC

regulations in the notification of 13.05.2019 read with

the Appendix H-1 should, pending the re-formulation

by NMC, be read in the light of the holdings in this

judgment.

(ii) The Disability Assessment Boards assessing the

candidates should positively record whether the

disability of the candidate will or will not come in the

way of the candidate pursuing the course in question.

The Disability Assessment Boards should state reasons

in the event of the Disability Assessment Boards

concluding that the candidate is not eligible for

pursuing the course.

(iii) The Disability Assessment Boards will, pending

formulation of appropriate regulations by the NMC,

pursuant to the communication of 25.01.2024 by the

Ministry of Social Justice and Empowerment, keep in

40 mind the salutary points mentioned in the said

communication while forming their opinion.

(iv) Pending creation of the appellate body, we further

direct that such decisions of the Disability Assessment

Boards which give a negative opinion for the candidate

will be amenable to challenge in judicial review

proceedings. The Court seized of the matter in the

judicial review proceedings shall refer the case of the

candidate to any premier medical institute having the

facility, for an independent opinion and relief to the

candidate will be granted or denied based on the

opinion of the said medical institution to which the

High Court had referred the matter.

(v) We have already, pursuant to our order dated

18.09.2024, in view of the favorable report dated

13.09.2024 of the Maulana Azad Medical College,

granted admission to the appellant. We confirm the

41 admission and direct the concerned authorities to treat

the admission as a valid admission in the eye of law.

54. The appeal is allowed and the impugned order dated

29.08.2024 is set aside. In view of our directions, Writ

Petition (Stamp) No. 24821 of 2024 pending in the High

Court of judicature at Bombay will stand disposed of in terms

of the holding in the present judgment. No order as to costs.

…..…………………J. (B.R. Gavai)

…..…………………J. (Aravind Kumar)

…..…………………J. (K.V. Viswanathan) New Delhi;

October 15, 2024.

42