Friday, October 8, 2010

Disabled Candidates are at par with SC/ST candidates


Dear Friends,

I had the opportunity to read the order of the Hon'ble High Court of Delhi in WP(C) 1352/2008  WP(C) 8750/2009 titled Md. Shah Afzal Vs. Medical Council of India and Anr. delivered on 06.07.2010. I am a little surprised by this move of the High Court in refusing to accept the petitioner's contention that the physically disabled candidates should be treated at par with the SC/ST candidates and merely advising the Government of India to consider the recommendations of Chief Commissioner for Disabilities who had directed all government-aided institutions to extend the relaxation in qualifying marks to physically disabled candidates in order to bring them at par with SC/ST candidates.  

The court in its concluding para said "Although we feel that physically disabled persons should be extended all the rights, privileges and benefits under the said Act so as to ensure that they are not discriminated against and that they come within the social mainstream, we do not agree with the contentions made on behalf of the petitioner that the petitioner, as of right, can claim parity with SC/ST candidates insofar as the relaxation in the minimum marks required is concerned.

The court concluded that insofar as physically disabled persons are concerned, they have a right to reservation but there is no right to relaxation or a concession in the minimum standards. 

In my considered view the stand of Medical Council of India that  physically disabled candidates cannot claim parity with SC/ST candidates as the two stand on entirely different footings is utterly flawed so is the conclusion of the Hon'ble Court. 

Argument -1

In the instant case the Hon'ble Court should have looked at the objective of the Persons with Disabilities Act 1995 and should have seen the DoPT Memorandum dated 29 December 2005,. Para No. 22 of the said notification does talk about relaxation of standards of suitability which is often given to the SC/ST categories also. Here is the exercpt:

"22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question."

Therefore, taking an analogy from the relaxation given here for employment, similar relaxation can easily be given to accommodate candidates with disabilities in the professional education too! 

Argument-2

Also the direction of the Chief Commissioner disabilities who is considered to be a Specialized Court on the law relating to disability, should have been given due importance for the decision of the CCPD was based of the very objective of the Disabilities Act and stand taken by the Government of India vis-a-vis parity between the disabled candidates and those belonging to SC/ST. Both categories have suffered marginalization due to lack of equitable opportunities due to social and environmental barriers and hence were considered for positive discrimination set out in the Indian Constitution by way of reservation despite Right to Equality.

Additionally it is the confirmed policy stand of the Govt. of India that relaxation in standards should be favoured when candidates belonging to reserved categories are not available on the basis of general standard to fill all the vacancies reserved for them. And there is no ambiguity that Persons with Disabilities are in reserved categories.

Argument-3



Hon'ble Supreme Court in Writ Petition (Civil) No. 115/1998 titled All India Confederation of the Blind Versus Union of India and Others on 22.03.2002 had upheld the stand taken by the Chief Commissioner-Disabilities and Govt. of India that by extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC /ST, would bring parity amongst all persons with disabilities irrespective of their vertical categories. (Click here to read the Supreme Court Order on the IA no 4.)


Lessons from the Case


Therefore, in all probabilities, the Hon'ble High Court of Delhi in the instant matter has erroneously ordered against the settled principals and the explanation as above. I feel the Counsels should do their homework while taking up matters of such public importance. Had the court been appraised of the above settled principal of Govt. of India and the existing order of the Hon'ble Supreme Court, this injustice to the petitioner could have been avoided. Worst is even the Representative of Chief Commissioner-Disability did not point out to the settled and accepted principal in an earlier case before the Supreme Court. I am not aware whether the petitioner had wherewithal to pursue the matter at Supreme Court level and eventually this erroneous judgment finality.

Need of Amendments in the Constitution of India to include Disability


The Honb'e Judge points out in the order "The fact that the physically disabled fall in a different class to the candidates belonging to the SC/ST category, in itself, implies that they could be treated differently just as candidates belonging to the general category are, indeed, treated differently from those belonging to the SC/ST category. The second answer is that what has been given to the SC/ST candidates is a concession. The petitioner, belonging to a physically disabled category, cannot claim such a concession as a right. "

This also indicates that the disability community needs to advocate for an amendment in Article 15(1), 15(2) and in 16(2) the Constitution of India so that discrimination on the basis of disability is checked and also Disability as a category is taken at par along with SC/ST categories.

Article 15(1)) be amended as:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them

Article 15(2) be amended as:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them, be subject to any disability (be deleted), liability, restriction or condition with regard to…”

Article 16(2) be amended as: 
 “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, disabilities (be added) or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”

This would give a great boost to the moral of persons with disabilities and so to their rights in India and give them parity with other reserved categories under Constitution of India. 

regards
SC Vashishth
Advocate-Disability Rights
+91-9811125521



Indian Express; Utkarsh Anand

In what might be a setback to thousands of physically challenged candidates looking to make careers in medicine, the Delhi High Court on Tuesday ruled that they cannot be given concession in qualifying marks similar to that of Scheduled Castes/Scheduled Tribes (SC/ST) candidates for admissions in MBBS courses in the Capital.

Dismissing a couple of writ petitions filed by a candidate with over 60 per cent locomotive disability, a Division Bench of Justices B D Ahmed and Veena Birbal held that while disabled candidates already had a right of reservation in educational institutions, they could not be given the right to avail concession in the minimum standards prescribed by the Medical Council of India (MCI).

The court noted that though several seats were going waste despite the 3 per cent reservation for the physically challenged due to the candidates’ failure in securing the required 50 (now 45) per cent marks in the qualifying exams, it would rather stick to the legal dimensions of the case.

“For the present, it is sufficient for us to observe that insofar as physically disabled persons are concerned, they have a right to reservation, but there is no right to relaxation or a concession in the minimum standards. And unless and until such a right is established, no mandamus or writ can be issued to any authority to give them the relaxation or concession,” the Bench held.

The writ was filed by Md Shah Afzal, who was denied admission in a Delhi University (DU) college for the MBBS course for failing to get 50 per cent marks in the the Delhi University Medical Entrance Test (DUMET) in 2008 and 2009. He contended before the authorities that the concession given to SC/ST candidates — they need to secure 40 per cent marks to qualify — should also be given to physical disabled candidates.

Afzal subsequently approached the Chief Commissioner under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The Commissioner then directed DU and the MCI to extend the relaxation to physically challenged candidates as well.

Afzal then approached the High Court and said the MCI had refused to obey the Commissioner’s directive even though the colleges failed to fill up the seats reserved for the physically challenged. Afzal further contended that other reputed institutions like the AIIMS and the IITs had gone ahead to provide disabled candidates the same concession for admission as given to SC/ST candidates.

The MCI also approached the court, saying the Commissioner had overstepped his jurisdiction by issuing directives to them.The Bench then adjudicated the Commissioner’s order and the writ petitions on the basis of legal criteria and dismissed Afzal’s plea. “Although we feel that physically disabled persons should be extended all rights, privileges and benefits under the said Act..., we do not agree that the petitioner, as of right, can claim parity with SC/ST candidates insofar as a relaxation in the minimum marks is concerned,” it held.

The court also set aside the Commissioner’s order, noting that his role was only recommendatory in nature and could not be binding upon the MCI. The Bench, however, asked the MCI and the Centre to give a “serious view” to whether disabled candidates could be allowed the same relaxation in marks as SC/ST candidates.

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