IN RE- RECRUITMENT OF VISUALLY IMPAIRED IN JUDICIAL SERVICES versus

Citation: [2025] 4 S.C.R. 222, 2025 INSC 300

Court: Supreme Court of India

Bench: J.B. Pardiwala and R. Mahadevan, JJ.

Judgment text

High Court of MP [2025] 4 S. C. R. 222 : 2025 INSC 300 In Re: Recruitment of Visually Impaired in Judicial Services (Suo Motu Writ Petition (Civil) No. 2 of 2024) 03 March 2025 [J. B. Pardiwala and R. Mahadevan,* JJ. ] Issue for Consideration Whether visually impaired candidates can be said to be 'not suitable' for judicial service; Whether the amendment made in Rule 6A of Madhya Pradesh Judicial Services (Recruitment and Conditions of Service) Rules, 1994 falls foul of the constitution; Whether proviso to Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 violates the equality doctrine and the principle of reasonable accommodation; Whether relaxation can be done in assessing the suitability of candidates when adequate PwD candidates are not available, after selection in their respective category; Whether a separate cut-off is to be maintained and selection conducted accordingly for visually impaired candidates.

Headnotes† Judicial Services - Judicial Services Examination - Visually impaired candidates, eligible to participate - Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 - 2023 amendment - r. 6A - Rajasthan Judicial Service Rules, 2010 - Rights of Persons with Disabilities Act, 2016 - Challenge to amendment in r. 6A, MP Judicial Service Rules, 1994 excluding visually impaired and low vision candidates from appointment in judicial service - Suo moto cognizance of letter petitions - Amendment, if falls foul of the constitution - Visually impaired candidates, if 'not suitable' for judicial service: Held: Visually impaired candidates cannot be said to be 'not suitable' for judicial service - They are eligible to participate in selection for posts in judicial service - Amendment made in r.

6A of the 1994 Rules falls foul of the Constitution, hence, struck down to the extent it does not include visually impaired persons who are educationally qualified for the post to apply therefor - r.

6A is against the guarantee of substantive equality embodied in the RPwD Act, 2016 and the principle of reasonable accommodation therein - The impugned rule * Author In Re: Recruitment of Visually Impaired in Judicial Services based on the medical report of a doctor cannot have any place in the disability jurisprudence that is ever evolving - Such conclusions based merely on a clinical assessment of disability, innocent of the principle of reasonable accommodation are not a fair and proper assessment of the capability of judicial officers with disabilities while participating in the selection to the post of judicial officers - Once a person has been permitted to the degree of law course, all other opportunities, whether in the form of practice as well as appointments, assignments whether public or private, would automatically make them eligible to participate for selection to the same - The principle of legitimate expectation also stands attracted to this case as part of the aspect of non-arbitrariness while furthering the equality doctrine - India is a signatory to United Nations Convention on the Rights of Persons with Disabilities and hence, under an obligation to fulfil this object of inclusive equality.

[Paras 42, 68(i)] Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 - 2023 Amendment - r. 7 - Principle of indirect discrimination - The amendment proposed to substitute r. 7 prescribing the additional requirement, to appear in the preliminary examination of the MP Judicial Service examination, of either a three-year practice period or securing an aggregate score of 70% in the first attempt - Challenge to the amendment and the consequential advertisement dtd. 17. 11. 2023 issued by the High Court of MP - Proviso to r. 7, if violates the equality doctrine and the principle of reasonable accommodation: Held: r.

7 to the extent of prescribing additional requirement of either a three-year practice period or securing an aggregate score of 70% in the first attempt violates the equality doctrine and the principle of reasonable accommodation - It is struck down in its application to differently abled persons who have the requisite educational qualifications for applying to the posts under judicial service - Applying the test of indirect discrimination, the ease of practice as well as the securing of marks cannot be said to be an equal condition to both classes of citizens, viz. , disabled and able-bodied lawyers as the atmosphere in which they operate are not the same - r.

7 will be applicable to the PwD candidates insofar as it prescribes the educational and other qualifications as eligibility criteria including the minimum aggregate score of 70% (with relaxation as may be determined like in the case of SC/ST candidates), but without the requirement of either that it should be in the first attempt or that they should have three years' practice - Impugned order dtd. 01. 04. 2024 224 passed by the High Court and the consequential notification dtd. 17. 11. 2023 issued by the High Court of Madhya Pradesh, set aside as against the PwD candidates - The appellant-'AY' in SLP (C) No. 12179 of 2024 and similarly placed persons are entitled to be considered for participating in the selection process in the light of this decision. [Paras 46, 67. 1(iii), 68(ii)] Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 - 2023 Amendment - r.

19 - Relaxation in cut-off marks - Relaxation in assessing the suitability of PwD candidates when adequate PwD candidates are not available, after selection in their respective category - Permissibility: Held: Relaxation of minimum marks is permissible in law - PwDs are to be identified as a separate class in itself and therefore, some kind of benefits has to be extended to them with respect to eligibility which was extended similarly to other vertical reserved class - Relaxation in marks can be given to PwD candidates - This relaxation in minimum marks does not dilute the efficiency in administration - In view of this and the 1994 Rules as amended on 22. 06. 2023 which empowers the High Court with the power to relax, relaxation of marks in interview is possible for PwD candidates - Furthermore, the Office Memorandum No. 36035/02/2017-Estt (Res) [Reservation for Persons with Benchmark Disabilities] dated 15. 01.

2018 issued by Ministry of Personal, Public Grievances & Pensions, Department of Personnel & Training also provides for relaxation in standards of suitability - Therefore, relaxation in minimum cut-off marks is permissible, especially when there is a specific power of relaxation available to the appointing authority - Relaxation can be done in assessing suitability of candidates when enough PwD are not available after selection in their respective category, in the light of existing Rules and Official Circulars and executive orders in this regard, as in the present case. [Paras 52, 59, 62, 67. 1(iv)] Judicial Services - Judicial Services Examination - Visually-impaired candidates - Separate cut-off for - Rights of Persons with Disabilities Act, 2016 - Rajasthan Judicial Service Rules, 2010 - rr.

10, 41: Held: A separate cut-off is to be maintained and selection made accordingly for visually-impaired candidates - Further, maintaining and operating a separate cut-off list is mandatory for each category, which includes PwD category as well - When the Rules considered In Re: Recruitment of Visually Impaired in Judicial Services the PwD as a separate category and provided them with reservations, it is indispensable on the part of the authorities concerned to declare separate cut-off marks for PwD category at each stage to ensure that those similarly placed candidates are adequately represented in the service fulfilling the very purpose of reservation - Non-disclosure of cut-off marks leads to a situation where such candidates may not be adequately represented in the judicial service, which is against the provisions of the RPwD Act, 2016 - Writ petitioners in WP (C) Nos.

484 and 494 of 2024 contending that separate cut-off was not applied in the Rajasthan Judicial Service Preliminary Examinations and consequently were not selected for the main examination, are entitled to be considered in the light of this decision in the next recruitment, if they so apply to the post notified along with the post unfilled now and carried forward to the next recruitment by maintaining a separate cut off and merit list for PwDs - Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994. [Paras 63. 3, 67. 1(v), (vi), 68(iv)].

Persons with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD), if distinct: Held: For the purpose of rights and entitlements of persons with disabilities, particularly in employment and more specifically in respect of the issues covered in the present judgment, there is no distinction between Persons with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD) - Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994 - Judicial Services. [Paras 63. 3, 67. 1(v), (vi)].

Disability Rights - Constitution of India - Articles 21, 41 - Right to dignity u/Article 21 - Principle of reasonable accommodation - Rights of Persons with Disabilities Act, 2016 - Rights-based approach - Role of Constitutional Courts: Held: Reasonable accommodation is not a discretionary measure but a fundamental right integral to achieving substantive equality for PwD, forming part of the right to dignity as guaranteed u/Article 21 of the Constitution - The 73rd and 74th Amendments of the Constitution of India made it a Constitutional obligation for the State to make provisions for safeguarding the interest of the weaker section of the society, including 'handicapped and mentally retarded' - State has an obligation to apply the Directive Principles of securing a social order in promotion of the welfare of the people - Article 41 of the Constitution is in the nature of a Directive Principle and it imposes 226 a duty on the State to make an effective provision, inter alia, for public assistance to disabled persons - RPwD Act, 2016 reveals that the principle of reasonable accommodation is a concept that not only relates to affording equal opportunity to the PwD but also it goes further as to ensuring the dignity of the individual by driving home the message that the assessment of a person's suitability, capacity and capability is not to be tested and measured by medical or clinical assessment of the same but must be assessed after providing reasonable accommodation and an enabling atmosphere - Significance of judgement in Vikash Kumar case, stated - Constitution of India is blind to the differences between able-bodied and differently abled citizens in matters of providing equal opportunity to all citizens in all spheres of life, including employment, and envisages equality and non-discrimination - This principle is to be enforced by the Constitutional Courts by adopting a rights-based approach providing an enabling environment and atmosphere and ensuring that PwD are provided with equal opportunities, and accommodation that they need and deserve in order to make sure that they can lead their lives with dignity, realising their fullest potential without facing discrimination.

[Paras 3, 40, 41] Disability Rights - Rights of Persons with Disabilities Act, 2016, a 'super-statute' - Scheme, discussed - Elevating right against disability based discrimination to a fundamental right - Need for: Held: RPwD Act, 2016 has acquired the status equal to that of a 'super-statute' and hence, contains the ingredients of a quasi-constitutional law - The RPwD Act, 2016 marks a significant legislative shift by expanding the rights of PwDs and broadening the recognized categories of disabilities - It ensures equality and non-discrimination, mandates reasonable accommodation, and prohibits barriers to community life, education, employment, and access to justice - It also provides for social security measures, inclusive education, reservations in higher education and employment, and protection from cruelty and exploitation - It also imposes clear responsibilities on the State and other stakeholders in this regard - The right against disability-based discrimination, as recognized in the RPwD Act 2016, needs to be seen of the same stature as a fundamental right, ensuring that no candidate is denied consideration solely on account of their disability.

[Paras 36, 67] Judicial Services - Rights of Persons with Disabilities Act, 2016 - Principle of reasonable accommodation - Substantive equality: In Re: Recruitment of Visually Impaired in Judicial Services Held: The principle of reasonable accommodation as enshrined in international conventions, established jurisprudence, and the RPwD Act, 2016, mandate that accommodations be provided to PwDs as a prerequisite to assessing their eligibility - Any indirect discrimination resulting in the exclusion of PwDs, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality - The commitment to ensuring equal opportunity necessitates a structured and inclusive approach, where merit is evaluated with due regard to the reasonable accommodations required, fostering judicial appointments that truly reflect the principles of fairness and justice - Disability Rights - International Disability Jurisprudence/International Conventions.

[Para 67] Rights of Persons with Disabilities Act, 2016 - s. 34 - Challenge to the notification dtd. 18. 02. 2023 in so far as it related to non-selection of the appellant in SLP(C) No. 7683 of 2024 on the vacant post of Physically Handicapped Quota under the Unreserved category on the post of Civil Judge, Junior Division (Entry Level) - High Court dismissed the writ petition holding that the benefit u/s. 34 and Clause 11 of the Office Memorandum dated 15. 01. 2018 cannot be granted to the appellant - Correctness: Held: Impugned order and the notification dated 18. 02. 2023 are set aside as far as the appellant 'AS' and similarly placed persons are concerned - Thus, the appellant and similarly placed persons who had participated in the selection process are entitled to be considered in the light of this decision and they may be appointed, if otherwise eligible in the vacant posts after applying applicable relaxation as provided for in the executive orders.

[Para 68 (iii)] Constitution of India - Article 15 - United Nations Convention on the Rights of Persons with Disabilities - Rights of Persons with Disabilities Act, 2016 - ss. 32, 34: Held: While Article 15 of the Constitution bars the State from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth, or any of them, the specific ground of 'disability' is conspicuous by its absence - The fact that 'disability' as a ground is not specifically stated under Article 15 of the Constitution, would not mean that the same is not part of the constitutional obligations of the State ss.

32 and section 34, RPwD Act, 2016 indicates that similar to the State's obligations to provide for special protection including in the form of reservation for socially and educationally backward classes in educational institutions 228 as well as in employment as stated in Articles 15 and 16 of the Constitution, the State has taken up the obligation of providing similar protection including reservation in respect of PwD - However, now an anti-discrimination clause ought to be included in the Constitution with a specific provision that the State shall not discriminate on the grounds of mental or physical disability in line with the principles as stated in the RPwD Act, 2016 - Disability Rights. [Paras 34, 35] Disability Rights - International Disability Jurisprudence - Discussed - United Nations Convention on the Rights of Persons with Disabilities, 2007.

[Paras 37, 38] Disability Rights - Judicial Services - Distinguished/ accomplished lawyers and judges with disabilities - Exemplary achievements of, enumerated - Reasonable accommodations for PwD, necessity. [Para 65] Case Law Cited Indra Sawhney v. Union of India[1992] Supp. 2 SCR 454 : (1992) Supp. 3 SCC 217 - followed. Union of India v. National Federalism of the Blind [2013] 9 SCR 1023 : (2013) 10 SCC 772; Jeeja Ghosh and Ors. v. Union of India and Ors. [2016] 4 SCR 638: (2016) 7 SCC 761; Vikash Kumar v. Union Public Service Commission and Others [2021] 12 SCR 311: (2021) 5 SCC 370;Col. Nitisha v. Union of India [2021] 4 SCR 633: 2021 SCC online SC 261; Taniya Malik v. High Court of Delhi[2018] 10 SCR 348 : (2018) 14 SCC 129;Justice Sunanda Bhandare Foundation v. Union of India[2014] 4 SCR 113 : (2014) 14 SCC 383; Francis Coralie Mullin v. Administrator Union Territory of Delhi & Ors. [1981] 2 SCR 516 : (1981) 1 SCC 608; Rajive Raturi v.

Union of India, AIR Online 2018 SC 544; Ravinder Kumar Dhariwal v. Union of India [2021] 13 SCR 823 : (2023) 2 SCC 209 - relied on. Jacob M. Puthuparambil & Others v. Kerala Water Authority and Others [1990] Supp. 1 SCR 562 : AIR 1990 SC 2228; V. Surendra Mohan v. State of Tamil Nadu[2019] 1 SCR 954 : (2019) 4 SCC 237; Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. [2018] 7 SCR 379 : (2018) 10 SCC 1; Aryan Raj v. State (UT) of Chandigarh (2021) 19 SCC 813; Haridas Parsedia v. Urmila Shakya[1999] Supp. 4 SCR 476 : (2000) 1 SCC 81;Om Rathod v. Director General of Health Services, 2024 SCC Online SC 3130; Anuj Garg v. Hotel Association of India[2007] 12 SCR In Re: Recruitment of Visually Impaired in Judicial Services 991 : (2008) 3 SCC 1;Dr. Kavita Khamboj v. High Court of Punjab and Haryana and others [2024] 2 SCR 1136 : (2024) 7 SCC 103; Abhimeet Sinha and Others v. High Court of Judicature at Patna and others[2024] 6 SCR 530 : (2024) 7 SCC 262 - referred to.

Rashmi Thakur v. High Court of Madhya Pradesh and Others, AIR Online 2018 MP 551; V. Surendra Mohan v. State of Tamil Nadu (2015) 4 Madras Law Journal 513; Madhu v. Northern Railway, Order dated 17. 01. 2018 in LPA. 640/2017; M. Sameeha Barvin v. Government of India (2021) 1 Madras Law Journal 466; Neetu Devi Singh v. High Court of Allahabad, 2008 (2) AWC 1541; Rajinder Pal Singh v. State of Punjab & Ors. , 2012 SCC Online P&H 2017;Anamol Bhandari v. Delhi Technological University 2012 SCC Online Del 4788 - referred to. Walter E. Washington, etc. , et. al. v. Alfred E. Davis et al. 426 U. S. 229; S. Coleman v. Attridge Law and Steve Law, European Court Reports 2008 1-05603;City Council of Pretoria v. Walker SACC-1998 (2) SA 363; Mahlangu v. Minister of Labour [2020] ZACC 24; Ontario Human Rights Commission v. Simpsons - Sears "Ontario HRC", MANU/SCCN/0009/1985;Orsus v. Croatia [2010] ECHR 337; Abdulaziz, Cabales and Balkandali v.

United Kingdom [1985] ECHR 7; National Capital Alliance on Race Relations v. Canada (Health and Welfare), 1997 28 C. H. R. R. D / 179 (Canadian Human Rights Tribunal); Van Raalte v. The Netherlands [1997] ECHR 6; Action Travail des Femmes v. Canadian National Railway Company [1987] 1 SCR 1114 - referred to. Books and Periodicals Cited William N. Eskridge Jr and John A. Ferejohn, super-statutes, 50 Duke Law Journal 1215-1276 (2001); Sandra Fredman, "substantive Equality Revisited" Vol. 14(3). , International journal of constitutional law (2016) 712-738 - referred to.

List of Acts Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules 1994; Rights of Persons with Disabilities Act, 2016; Rajasthan Judicial Service Rules, 2010; Constitution of India; Madhya Pradesh Rights of Persons with Disabilities Rules, 2017; Madhya Pradesh District Court Establishment (Recruitment and Conditions of Service) Rules 2016; Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 230 2017; Madhya Pradesh Judicial Service Examination (Amendment) Act, 2023; Delhi Judicial Service Rules, 1970; Himachal Pradesh Judicial Services Rules, 2004; Himachal Pradesh Judicial Service (2nd amendment) Rules, 2016; Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

List of Keywords Visually impaired candidates; Appointment in judicial service; Judicial service examination; Exclusion of blind persons from judiciary; Exclusion of visually impaired, low vision candidates from appointment in judicial service; Suo-moto cognizance; Letter petitions; Disability rights; Persons with Disabilities (PwD); Persons with Benchmark Disabilities (PwBD); Deafness; Cerebral palsy; Autism; Intellectual disability; Specific learning disability; Mental illness; Relaxation in assessing the suitability of PwD candidates; Separate cut-off; Non-declaration of cut-off marks; Test of indirect discrimination; Principle of reasonable accommodation; Reservation of posts for PwD; Transparency; Fairness; Equal opportunity; Dignified life; Fundamental rights; Principle of legitimate expectation; Right against disability based discrimination; Mandamus; Non-discrimination; Doctrine of equality; Equality for PwD; Right to dignity; Safeguarding interest of weaker section of society; Medical or clinical assessment; Inclusivity; Non-arbitrariness; Eligibility criteria; Separate class; Minimum qualifying marks; Public employment; Relaxation in minimum marks; PH category; Unreserved category; Preliminary examination; Horizontal reservation; Main examination; General category; Fully-abled candidates; Recruitment process; Unreserved category of the physically handicapped quota; Art.

14 of the Constitution; Art. 15 of the Constitution; Art. 16 of the Constitution; Art. 19 of the Constitution; Art. 21 of the Constitution; Art. 253 of the Constitution; Rights-based model of disability; United Nations Convention on the Rights of Persons with Disabilities, 2007; International Principles and Guidelines on Access to Justice for Persons with Disabilities 2019; Vienna Convention on the Law of Treaties, 1969; United Nations Committee on the Rights of Persons with Disabilities; Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region; Asian and Pacific Decade of Disabled Persons In Re: Recruitment of Visually Impaired in Judicial Services 1993-2002; Economic and Social Commission for Asia and Pacific; International human rights law; UNCRPD Committee; Ontario Human Rights Code; European Court of Human Rights; Human Rights Tribunal of Canada; Department of Empowerment of Persons with Disabilities (Divyangjan).

Case Arising From CIVIL ORIGINAL JURISDICTION: Suo Motu Writ Petition (Civil) No. 2 of 2024 (Under Article 32 of The Constitution of India) In Re: Recruitment Of Visually Impaired In Judicial Services With Suo Motu Writ Petition (Civil) No. 6 of 2024, Civil Appeal Nos. 3496 and 3497 of 2025 and Writ Petition (Civil) Nos. 484 and 494 of 2024 Appearances for Parties By Courts Motion. Gaurav Agrawal, Sr. Adv. /Amicus Curiae. Advs. for the Petitioners: Ravi Prakash Mehrotra, Sr. Adv. , Nishit Agrawal, Ms. Kanishka Mittal, Siddhartha Iyer, Utkarsh Sonkar, Shrey Kapoor, Ms. Upasna Agrawal, Ms. Aparna Mehrotra, Jabar Singh, Prmoad Kumar, Apoorva Srivastava, Vishvajeet Vijaykumar Shinde, M/s. V. Maheshwari & Co. , Ravi Raghunath, Manan Daga, Nakul Patwardhan, Karan Singh, Ms. Kaarunya Lakshmi, Ms. Sejal Jain. Advs. for the Respondents: Ms. Archana Pathak Dave, A. S. G. , Harmeet Singh Ruprah, D. A. G. , S. K. Rungta, Sr. Adv. , Arjun Garg, Ms.

Kriti Gupta, Ponnam Mahesh Babu, Brahma Prakash Soni, Mukul Kumar, Sunny Choudhary, Sarad Kumar Singhania, Ms. Vijaya Singh, Alabhya Dhamija, Bhuvan Kapoor, Madhav Sinhal, Dr. N. Visakamurthy, Shyam Gopal, Sameer Shrivastava, Prashant Singh, D. K. Garg, Abhishek Garg, Dhananjay Garg, Ms. Enakshi Mukhopadhyay Siddhanta, Ravi Kumar S. , Ms. Susmita Lal, Kamakhya Srivastava, Gautam Narayan, Sandeep Sudhakar Deshmukh, Nishant Sharma, Savadikar Ankur Shirish, G. Sivabalamurugan, Selvaraj Mahendran, C. Adhikesavan, Harikrishnan P. V. , C. Kavin Ananth. 232 Judgment / Order of the Supreme Court Judgment R. Mahadevan, J. Leave granted. This judgment is organized under the following heads for easy reference and understanding: SL. HEADS PARAGRAPHS NO. I INTRODUCTION 02 - 03 II RELIEFS PRAYED FOR 04 - 8. 1 III SUMMARY OF PLEADINGS & SUBMISSIONS 09 - 28 OF LEARNED COUNSELS A SUO MOTU W. P. (CIVIL) NO. 2 OF 2024 09 - 12. 5 [IN RE: RECRUITMENT OF VISUALLY IMPAIRED IN JUDICIAL SERVICES VS.

THE REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH & ORS] A. 1 SUBMISSIONS OF DR. SANJAY JAIN - 13 - 13. 11 INTERVENOR B SUO MOTU W. P. (CIVIL) NO. 6 OF 2024 14 - 16 [IN RE: RECRUITMENT OF PERSONS WITH DISABILITIES' CANDIDATES IN RAJASTHAN JUDICIAL SERVICES VS. HIGH COURT OF RAJASTHAN AND ORS] C AYUSH YARDI VS. STATE OF M. P. AND 17 - 21 ANOTHER [SLP(C) NO. 12179 OF 2024] D ALOK SINGH VS. STATE OF M. P. [SLP(C) 22 - 24. 2 NO. 7683 OF 2024] E MANVENDRA SINGH RATHORE & ORS. 25 - 28 ALISHA KHAN VS. HIGH COURT OF RAJASTHAN & ORS. [W. P. (C) NOS. 484 AND 494 OF 2024] IV ISSUES THAT ARISE FOR CONSIDERATION 29 - 29.

1 V DISCUSSION AND ANALYSIS 30 - 66 A EXISTING CONSTITUTIONAL FRAMEWORK 33 - 36 & NEED FOR ELEVATING RIGHT AGAINST DISABILITY - BASED DISCRIMINATION TO A FUNDAMENTAL RIGHT In Re: Recruitment of Visually Impaired in Judicial Services B I N T E R N A T I O N A L D I S A B I L I T Y 37 - 38 JURISPRUDENCE, DOCUMENTS AND COMMITMENT C R P w D A C T - P R O V I S I O N S A N D 39 GUARANTEES D JUDICIAL APPROACH - PROGRESS MADE 40 THUS FAR E RIGHTS-BASED APPROACH 41 - 42 F INDIRECT DISCRIMINATION 43 - 46 G RELAXATION IN SELECTION CRITERIA 47 - 62 & SEPARATE CUT-OFF FOR DISABLED CANDIDATES - WHETHER PERMISSIBLE H SHINING EXAMPLES TO SHOW- 'IT CAN 65 - 66 BE DONE' VI CONCLUSION 67 - 67. 1 VII RESULT 68 - 69 I. INTRODUCTION 2. January 4, 2019 was chosen as the World Braille Day by the United Nations to commemorate the birthday of Louis Braille and to remember him as the man who invented the system 'Braille' in 1829, which is used by the visually impaired for reading and writing, till date.

Louis Braille who became completely blind in both eyes by the age of five, had developed this system by himself at the age of 20 inspired by the communication system devised by Captain Charles Barbier of the French Army, and offered professorship at the National Institute for Blind Youth, Paris, where he taught history, geometry and algebra while also having an ear for music. Almost two centuries ago from now, Louis Braille had understood that what the visually impaired needed was not pity or sympathy but accommodation and an enabling atmosphere in which communication played an important role. In his own words, "access to communication in the widest sense is access to knowledge, and that is vitally important for us if we (the Blind) are not to go on being despised or patronized by condescending sighted people. We do not need pity, nor do we need to be reminded we are vulnerable. We must be treated as equals and communication is the way this can be brought about.

" His words are a poignant 234 and resounding reminder of the fervent appeal of Persons with Disabilities1 to be afforded equal opportunities so as to enable them to enjoy a life of dignity and progress in all spheres on par with their able-bodied counterparts. 3. "Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. " This prophetic dissenting opinion of Justice John Marshall Harlan in Plessy v. Ferguson (1896) can well be said to capture the spirit of what we are called upon to decide today. To draw a parallel, the Constitution of India is blind to the differences between able-bodied and differently abled citizens in matters of providing equal opportunity to all citizens in all spheres of life, including employment, and envisages equality and non-discrimination.

This principle is to be enforced by the Constitutional Courts, by adopting a rights-based approach, providing an enabling environment and atmosphere, and ensuring that PwD are provided with equal opportunities, and accommodation that they need and deserve in order to make sure that they can lead their lives with dignity, realising their fullest potential without facing discrimination. Holding this concept of equality and non-discrimination as the basic foundation on which all issues arising from the cases on hand are to be decided, we proceed further to deal with them. II. RELIEFS PRAYED FOR Suo Motu Writ Petition (C) No. 2/2024 4. On 07. 03. 2024,2 this Court has taken suo motu cognizance of a letter petition dated 15. 01. 2024, which was addressed to the Hon'ble Chief Justice of India, by the mother of a judicial aspirant who is a visually 1 For short, "PwD" 2 1.

The Madhya Pradesh Judicial Services Examination (Recruitment and Conditions of Service) Rules 1994 have been amended, as a consequence of which, Rule 6A excludes visually impaired and low vision candidates from appointment in the judicial service. 2. A letter petition has been converted into a petition under Article 32 of the Constitution. 3. We direct issuance of notice, returnable in two weeks to: (i) The Registrar General of the High Court of Madhya Pradesh; (ii) The State of Madhya Pradesh; and (iii) The Union of India. 4. We request Mr Gaurav Agarwal, senior counsel to assist the Court as Amicus Curiae in the matter. At this request, Mr Ravi Raghunath, counsel shall stand nominated as Advocate-on-Record to assist him. 5. List the Petition on 1 April 2024. In Re: Recruitment of Visually Impaired in Judicial Services impaired candidate, challenging the legality of the Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules 1994, as amended on 23.

06. 2023, whereby Rule 6A excludes visually impaired and low vision candidates from appointment in the judicial service. According to the letter petitioner, the action of the Madhya Pradesh High Court is arbitrary, discriminatory, unjust and violative of the spirit of the Constitution. Hence, she requested this court to examine the matter and protect the interests of visually impaired candidates ensuring their right to equal opportunity and a dignified life, as per the Rights of Persons with Disabilities Act, 20163. Suo Motu Writ Petition (C) No. 6/2024 5. This case arises from a letter petition sent by a visually impaired law student to the Hon'ble Chief Justice of India, requesting to take necessary steps to ensure transparency, fairness and equal opportunity for persons with disabilities candidates in judicial service examinations in Rajasthan. Appeal arising from SLP(C) No. 12179/2024 6. Challenge is to the final order dated 01. 04.

2024 passed by the High Court of Madhya Pradesh at Jabalpur in W. P. No. 30465 of 2023, whereby, the High Court rejected the challenge to the amendment in Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 and the consequential notification dated 17. 11. 2023 issued by the High Court of Madhya Pradesh as they do not provide a specific exemption for persons with disabilities, and consequential direction to the respondent authorities to give relaxation of Rule 7 to the appellant herein. Appeal arising from SLP(C) No. 7683 of 2024 7. Challenge is to the order dated 11. 01. 2024 passed by the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 11175/2023. The said writ petition was filed by the appellant (i) to set aside the notification dated 18. 02.

2023 as far as it relates to non-selection of the appellant on the vacant post of Physically Handicapped Quota under the Unreserved category on the post of Civil Judge, Junior 3 For short, "the RPwD Act, 2016" 236 Division (Entry Level), and (ii)to direct the respondent authorities to grant appointment to the appellant on the post of Civil Judge, Junior Division (Entry Level) under Physically Handicapped candidate under the Unreserved category along with all consequential benefits. By the order impugned herein, the High Court dismissed the writ petition by observing that the benefit under Section 34 of the RPwD Act, 2016 and Clause 11 of the Office Memorandum dated 15. 01. 2018, cannot be granted to the appellant herein. W. P. (C) Nos. 484 and 494 of 2024 8.

To issue a writ of Mandamus directing the High Court of Rajasthan, to publish separately and declare the results and cut off marks for persons with benchmark disabilities4 category for the Rajasthan Judicial Service Examinations at every stage viz. , Preliminary, Mains, Interviews and final result. I. A. No. 242002 of 2024 in W. P(C) No. 494 of 2024 8. 1. In addition to the above reliefs, the petitioner sought the following prayers, by way of this amendment application: (i) To issue a declaration that the Rajasthan Judicial Service Rules, 2010 are violative of Articles 14, 16 and 21 of the Constitution of India insofar as they do not provide for the declaration of a separate merit list and/or cut-off for persons with benchmark disabilities' candidates despite the candidates constituting a separate class of candidates competing amongst themselves; (ii) To issue a Mandamus directing the Respondent No.

1 to amend the Rajasthan Judicial Service Rules, 2010 to bring them in accordance with Rights of Persons with Disabilities Act, 2016 and Office Memorandum issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India time and again to include specific provisions for the declaration of a separate merit list for Persons with Benchmark Disabilities; 4 For short, "PwBD" In Re: Recruitment of Visually Impaired in Judicial Services (iii) To issue a Mandamus directing the Respondent No. 1 to hold the separate main examinations for the candidates of persons with benchmark disabilities category including the petitioner herein, for selection in the Rajasthan Judicial Service Examination, 2024; (iv) To issue a Mandamus directing the Respondent No.

1 to declare the results for the candidates of persons with benchmark disabilities category separately for each stage of shortlisting for the purposes of selection in the Rajasthan Judicial Service Examination, 2024. III. SUMMARY OF PLEADINGS & SUBMISSIONS OF LEARNED COUNSELS A. IN RE: RECRUITMENT OF VISUALLY IMPAIRED IN JUDICIAL SERVICES VS. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND OTHERS [SUO MOTU WRIT PETITION (CIVIL) NO. 2 OF 2024] 9. Based on the letter petition dated 15. 01. 2024 given by the mother of a visually impaired candidate to the Hon'ble Chief Justice of India, challenging the amendment made in Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994, whereby reservation granted in favour of blind and low vision persons, was withdrawn, this Court has registered the captioned suo motu Writ Petition. 10.

The respondents in this suo motu writ petition are the High Court of Madhya Pradesh, Government of Madhya Pradesh and Union of India. Vide order dated 15. 04. 2024, this Court impleaded one Dr. Sanjay S. Jain, a professor of Law at the National Law School of India University, Bangalore, with over 25 years of teaching experience and totally blind since birth, as an intervenor, to assist the Court in connection with the present issue concerning the appointment of visually impaired persons as Judges in District Judiciary. Submissions of the Letter Petitioner 11. According to the letter petitioner, Rule 12(1)(a) of the Madhya Pradesh Rights of Persons with Disabilities Rules, 2017 framed by the Madhya Pradesh Government in exercise of power conferred 238 under Article 101 of the RPwD Act, 2016 provides for reservation in favour of blind and low vision persons. In light of the judgment in Rashmi Thakur v.

High Court of Madhya Pradesh and others5and the Madhya Pradesh District Court Establishment (Recruitment and Conditions of Service) Rules 2016, reservation was given to visually impaired persons. Other States, such as Haryana, Delhi, etc. , also provide reservation for the same category. Hence, the amendment made in Rule 6A of Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994, is in violation of Articles 14, 15, 16 and 21 of the Constitution of India. It was also stated in the said letter petition that the Madhya Pradesh High Court granted reservation for blind and low vision candidates in the Judicial service vacancies of 2021 and therefore, removing such reservation for the present would amount to unjust discrimination between those selected in the same category before 2023 and those after. Stating so, the letter petitioner requested this Court to consider the issue and protect the interests of the visually impaired candidates.

Submissions on the side of High Court of Madhya Pradesh 12. It was submitted that the impugned rule viz. , clause 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 deals with reservation of posts for PwD in recruitment to the post of Civil Judge (Entry Level) and the same reads as under: "6A. 6% posts shall be horizontally reserved, only at the time of initial recruitment of persons suffering from locomotor disability including leprosy cured, dwarfism, muscular dystrophy and acid attack victims, excluding cerebral palsy, as specified under S. 34 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016). Provided that if such reserved posts or any of them are not filled in a given recruitment year due to non-availability of suitable students, such vacancy shall be carried forward into the succeeding recruitment year and if no suitable candidate is available, then they shall be treated as unreserved posts.

" 5 AIR ONLINE 2018 MP 551 In Re: Recruitment of Visually Impaired in Judicial Services When the Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 20176 were being framed, an opinion was sought from the then Dean, Netaji Subhash Chandra Bose Medical College & Hospital, Jabalpur, (An Autonomous Government Medical College) District Jabalpur (M. P. ) on the suitability of PwD as stipulated in the RPwD Act, 2016 for the post of District Judge (Entry Level). The Dean, vide letter no. 6417 dated 04. 10. 2017 opined that a person suffering from certain disabilities, such as, being blind or having low vision, deafness or hard of hearing, cerebral palsy, autism, intellectual disability, specific learning disability and mental illness and multiple disabilities under clauses (a) to (d) of the RPwD Act, 2016 cannot perform the duties of a Judge in the Higher Judicial Service.

In light ofthe opinion given by the Dean, the provision providing for 2% reservation to persons suffering from disabilities mentioned in Cl (a), (b), (c - cerebral palsy only), (d) and (e) of the RPwD Act, 2016 was proposed to be removed from the MPHJS Rules, 2017. Thereafter, the matter was referred to the Commissioner, Disabilities in terms of the second proviso to Section 34 of the RPwD Act, 2016 and as per the exemption given by the State Government, Department of Social Justice and Disabilities Welfare Department, the MPHJS Rules, 2017 were published and made applicable with effect from 13. 03. 2018. Thus, there is full compliance with the requirements of Section 34 of the RPwD Act, 2016. 12. 1. According to the learned counsel, the terminology used in second proviso to Section 34 is 'regard to the type of work carried out in any Government Establishment'.

The type of work performed by a member of the Higher Judicial Service (Entry Level) is identical to that carried out by a Civil Judge (Entry Level). Therefore, it was informed orally by the State authorities that there was no necessity to obtain separate permission seeking exemption for the establishment of High Court/District Courts as mere change in nomenclature of the post does not require separate notification, given that the nature of work and the establishment remain the same. In view of the said fact that an exemption has already been granted in favour of the establishment of District Judiciary by the State Government of Madhya Pradesh in terms of the 6 For short, "the MPHJS Rules, 2017" 240 provisions contained in Section 34 of the RPwD Act, 2016, without challenging the vires of the Rules, the letter petition is thus not maintainable. 12. 2. The learned counsel further submitted that the High Court in its letter dated 23. 02.

2023 had approved the amendment to increase the reservation for PwD from 4% to 6% in light of Rule 12 of the Madhya Pradesh Rights of Persons with Disability Rules, 2017 and the said amendment as approved by the State of Madhya Pradesh, was published in the Government gazette on 23. 06. 2023. 12. 3. Thus, according to the learned counsel, there is no restriction of any nature on visually impaired persons to participate in the recruitment examinations for judicial service. However, the opinion of the medical expert i. e. , Dean of Netaji Subhash Chandra Bose Medical College & Hospital, Jabalpur District, reflects that a person suffering from the disability stated in clause (a), (b), (c - cerebral palsy only), (d) and (e) of the RPwD Act, 2016, would not be able to perform the duties expected of a judge, viz.

, going through pleadings of parties, reading case documents, recording oral evidence, assessing the demeanour of witnesses, facilitating compromise between parties, reading judicial pronouncements, conducting court proceedings, delivering judgments, and handling administrative responsibilities. In view of the same, it was felt that a person with blindness or low vision, deafness and hard of hearing, autism, cerebral palsy, intellectual disability, specific learning disability, mental illness, multiple disabilities would not be able to fulfil the duties and responsibilities required of a judge. Therefore, the action of the High Court is pursuant to the exemption granted by the State Government, in accordance with second proviso to section 34(1) of the RPwD Act, 2016; and the amendment in Rule 6A has a reasonable nexus with the object sought to be achieved, and is neither discriminatory nor arbitrary in any manner. 12. 4.

It was submitted by the learned counsel that pursuant to the interim order of this Court dated 21. 03. 2024, all visually impaired candidates, who secured the minimum qualifying marks in their respective categories at the preliminary examination, were permitted to participate in the main examinations conducted on In Re: Recruitment of Visually Impaired in Judicial Services 30. 03. 2024 and 31. 03. 2024. That apart, thisCourt, in its order dated 07. 11. 2024 in S. M. W. (C)No. 2 of 2024, issued guidelines to be followed by the High Courts for the selection of candidates belonging to PwD to the District Judiciary across the country. In compliance with the same, a proposal was placed before the Rule Making Committee to align the MPJS Rules, 1994. 12. 5.

Stating so, the learned counsel submitted that this Court may consider issuing necessary directions to the respondents permitting individuals with low vision or visual impairment to avail the benefits of the RPwD Act, 2016, provided that a medical assessment confirms the fact that their condition is unlikely to lead to blindness or significant vision loss within a reasonable time frame - typically 25 to 30 years from the time of recruitment - so as to ensure that they can work without difficulty throughout their tenure. A. 1 SUBMISSIONS OF DR. SANJAY JAIN - INTERVENOR 13. According to the learned counsel appearing for the intervenor, the Madhya Pradesh Judicial Service Examination (Amendment) Act, 2023 violates the right of the visually impaired persons to participate in the Judicial Service Examinations.

Through various documents filed along with the intervening application, the learned counsel invited our attention to the recruitment rules for appointment of Judges from among PwDs prevailing across India. The learned counsel submitted that out of the 25 High Courts in India, only a few have made provisions for the reservation of PwDs, which are as follows: (a) As far as the High Court of Delhi is concerned, the recruitment is governed by Delhi Judicial Service Rules, 1970. Rule 22 substituted in 2019 reads as under: "22. Recruitment made to the service by direct recruitment shall be subject to provisions regarding reservation and other concessions (except age relaxation) for the Scheduled Castes, Scheduled Tribes and Persons with Disability candidates [suffering from any of the disabilities mentioned in sub section (1) of Section 34 of the Rights of Persons with Disabilities Act, 2016] as provided by law or orders issued by the Central Government from time to time.

" 242 (b) As far as High Court of Madhya Pradesh is concerned, the MPHJS Rules, 2017 was enacted in supersession of the earlier rules governing the field. Rule 6(2) provides for 2% reservation in favour of persons suffering from locomotor disabilities excluding those suffering from cerebral palsy. Apart from reservation in appointments, the High Courts of Delhi and Madhya Pradesh provide for partial fee concessions and scribe facilities to candidates. (c) Rule 5 of Himachal Pradesh Judicial Services Rules, 2004, as amended by the Himachal Pradesh Judicial Service (2nd amendment) Rules, 2016 provides for a 3% reservation for PwDs, for the posts of Additional District Judge and Civil Judge. (d) In Andhra Pradesh, the reservation for PwDs is quantified such that out of every 100 posts, 54 are to be made on the basis of open competition, and 3 are to be earmarked for direct recruitment of physically handicapped persons.

Apart from that, upper age limit for Persons with Locomotor Disability is determined as 45 years. (e) In Telangana, the quantum of reservation is same as followed in Andhra Pradesh and the same is provided only to persons who are Orthopaedically Handicapped, with no upper age relaxation provided. (f) The Orissa High Court also restricts reservation to Orthopaedically Handicapped persons however the percentage of reservation is only 1%. (g) The Chhattisgarh High Court adopts a superimposed conception of disability by providing that 2% of the posts shall be reserved for the physically handicapped persons having orthopaedic disabilities subject to a sub-rule stating that 'the person has good character and is of sound health and mind and is free from any disability which renders him unfit for such appointment'. (h) In the State of Rajasthan, blind candidates are extended the benefit of reservation under the Rajasthan Judicial Services Rules, 2010.

Rule 36 of the Rajasthan Employment of Disabled Persons Rules, 2000 mandates 3% reservation for disabled persons, out of which, 1% must be reserved for persons with low vision/blindness, hearing impairment or locomotor disability. In Re: Recruitment of Visually Impaired in Judicial Services (i) The High Court of Madras vide Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 follows the PwD Act 1995 by providing 1% in each category separately reserved for blind, deaf and orthopaedically handicapped candidates and the appointment are made in turn and in the order of rotation as specified in Schedule III-A. The recruitment rules further stipulate that if no qualified and suitable candidate is available in a particular disability category, the vacancy may be filled by candidates from other disability categories.

The Government of Tamil Nadu vide Instructions to The Candidates Applying for The Post of District Judge (Entry Level) By Direct Recruitment in The Tamil Nadu State Judicial Service dated 01. 07. 2023 has set out a comprehensive reservation policy for PwDs. The High Court also provides a complete fee waiver for the examination however, the notification is silent on the provision of a scribe facility. It explicitly denies upper age relaxation to PwDs. While recognising the post of District Judge to be one of the identified posts for PwDs, the recruitment notification adopts a superimposed conception of disability. The post of District Judge (Entry Level) has been identified as suitable for Hard of Hearing / One Arm / One Leg / Both Legs / Leprosy cured / Dwarfism / Acid Attack Victims (without the assistance of the scribe and with the assistive device) categories of Differently Abled Persons as per the Rules.

The candidates who are able to perform the following physical activities alone are eligible as per Rule 10 of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, as amended in G. O. (Ms) No. 234, Home (Courts-I) Department, dated 03. 04. 2018: (a) Work performed by Sitting - S (b) Work performed by Standing - ST (c) Work performed by Walking - W (d) Work performed by Seeing - SE (e) Work performed by Hearing - H (f) Work performed by Reading and Writing - RW (g) Communicating (Including verbal or nonverbal communication). 244 (j) As many as 11 High Courts viz. , Jammu and Kashmir, Calcutta, Jharkhand, Sikkim, Uttarakhand, Manipur, Meghalaya, Allahabad, Karnataka, Bombay and Tripura do not provide for any reservation or concession to PwDs in the recruitment of Judges. 13. 1.

The learned counsel further submitted that Section 32 of the erstwhile Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, corresponding to Section 33 of the RPwD Act 2016, required the State to identify posts in establishments that could be reserved for PwDs. Accordingly, an Expert Committee was set up on 30. 12. 2010 under the Chairmanship of the Additional Secretary, Ministry of Social Justice and Empowerment, Government of India to identify these posts. The Committee submitted its report in 2012, and the list of posts identified for them under Section 32 of the PwD Act, was published vide notification dated 29. 07. 2013. The notification groups various posts into 4 different categories with the post of Judges and Magistrates, specifically identified under serial number 466 in Group A. 13. 2. It was also submitted that a Division Bench of the Delhi High Court by order dated 23. 08. 2006 in W. P. No.

9840 of 2006, expressly considered the inclusion of blind persons for the post of Judges. In view of the same, persons with blind/ low vision were made eligible for reservation to the posts of Judges/Magistrates in the Delhi Judicial Service. Subsequently, another Division Bench of the Delhi High Court in W. P No. 983 of 2014 titled 'Nishant S. Diwan v. High Court of Delhi' decided on 25. 03. 2014, extended the benefit of Section 32 of the PwD Act, 1995, to the Delhi Higher Judicial Service also. 13. 3. It was further submitted that the RPwD Act, 2016 replaced the PwD Act, 1995 with effect from 19. 04. 2017. Section 3(3) of the RPwD Act, 2016 prohibits discrimination on the ground of disability, while Section 20 specifically prohibits discrimination in matters of public employment. Furthermore, the RPwD Act, 2016 casts a duty on the State to "appoint" not less than 4 per cent of the total number of vacancies in the cadre strength in each group of posts from PwD.

Commenting upon the sea In Re: Recruitment of Visually Impaired in Judicial Services change brought about by the RPwD Act, 2016, this Court in Justice Sunanda Bhandare Foundation v. Union of India vide order dated 25. 04. 2017 in I. A. No. 10 of 2015 in W. P. No. 110 of 1998, made several observations relating to the PwD. Thus, according to the learned counsel, while right to live with dignity has been recognized as an integral facet of the right to life under Article 21 of the Constitution of India, non-adherence to the commitment of the State to protect the dignity of PwD under Section 3 of the RPwD Act, 2016 constitutes a serious violation of Fundamental Rights. 13. 4. The learned counsel submitted that the impugned Rule i. e.

, clause 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994, creates a stereotypebased classification between persons with blindness and low vision and "persons with locomotor disability including leprosy cured, dwarfism, muscular dystrophy and acid attack victims" entitling the latter to the benefit of reservation and not the former. Similar to the provision at issue in Anuj Garg v. Hotel Association of India7 which created a classification between women and men, and this Court declared the same as unconstitutional, after having pointed out that 'the impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role; the perspective thus arrived at is outmoded in content and shifting in means. ' Thus, according to the learned counsel, Clause 6A proceeds on the stereotypical assumption that the loss of sight cannot be offset by a PwD consequently perpetuating their oppression. 13. 5.

It was further submitted that the impugned rule is indicative of the ignorance to what the disabled, when provided appropriate support, could accomplish. Such ignorance cannot serve as a valid legal basis for sustaining the impugned rule. Moreover, even if the argument that a blind or low vision judicial officer in the Madhya Pradesh Judiciary would be unable to effectively discharge judicial functions, is accepted, the responsibility for this lies with the High Court administration itself. Rather than outrightly excluding an entire class of citizens from the 7 (2008) 3 SCC 1 246 reservation to which they are statutorily entitled, the appropriate response should have been to identify and address the specific challenges that hinder their full participation. Such an approach would encourage constructive solutions to remove or mitigate these barriers, paving the way for greater inclusivity in the future.

In keeping with the shift from the medical model of disability to the social model, which this Court has repeatedly recognized, the focus must not be on how the disability itself creates obstacles but rather on how the societal / institutional barriers prevent full and equal participation of PwDs and how these barriers can be effectively dismantled. 13. 6. The learned counsel also contended that the very same argument which is now being advanced by the Madhya Pradesh High Court was accepted by a Division Bench of the Madras High Court in V. Surendra Mohan v. State of Tamil Nadu,8 which was also affirmed by this Court in V. Surendra Mohan v. State of Tamil Nadu. 9 However, in Vikash Kumar v.

Union Public Service Commission and others,10 this Court overruled its previous judgment in Surendra Mohan (supra), wherein, the issue was relating to the decision of the Tamil Nadu Public Service Commission ("TNPSC") in imposing a ceiling of 40-50% visual/hearing impairment as the eligibility criterion for appointment as a Civil Judge (Junior Division); the Appellant therein, who had visual impairment of 70%, was rendered ineligible by virtue of this ceiling; the Madras High Court had upheld this ceiling. When the matter was taken up by this Court, a two-judge bench affirmed the Madras High Court's view by holding that a judicial officer in a State has to possess reasonable faculties of hearing, sight and speech in order to hear cases and write judgments and therefore, the impugned ceiling created a legitimate restriction.

However, in the later judgment in Vikash Kumar (supra), this Court held that the ratio in Surendra Mohan was flawed as the said judgment had been delivered after India became a party to the United Nations Convention on the Rights of Persons with Disabilities 8 (2015) 4 Madras Law Journal 513 9 (2019) 4 SCC 237 10 (2021) 5 SCC 370 In Re: Recruitment of Visually Impaired in Judicial Services (UNCRPD) and enacted the RPwD Act, 2016, both of which recognize the principle of Reasonable Accommodation ("RA"). This Court further held that the view in Surendra Mohan (supra) had failed to consider, whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided the reasonable accommodation necessitated by his disability.

This Court further held that RA, by definition, has an "exhortatory dimension" and requires going the extra mile to accommodate PwDs and an institution cannot refuse to provide RA on the ground that providing the same would cause avoidable complications. This Court also held that an RA analysis required "a consideration of the specific accommodations needed, the cost of providing them, reference to the efficacy with which other Judges with more than 40- 50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors". Furthermore, in Jeeja Ghosh and Ors. v. Union of India and Ors. ,11this Court recognized the principle of reasonable accommodation as being a component of the constitutional equality guarantee. Thus, according to the learned counsel, the impugned rule is violative of the principle of RA. 13. 7.

The learned counsel also pointed out that able-bodied judges routinely resort to the support of staff members to perform their obligations effectively. This includes court masters/ stenographers, to whom judges dictate their orders and judgments. It also includes secretarial staff and judicial law clerks, who are responsible for assisting the judge with tasks such as management of files, making synoptic notes of the cases in that judge's court and research assistance. At the highest, all that can be said is that a judge with a disability will need some extra human support. However, that does not, ipso facto, translate into greater loss of secrecy. Judges with disabilities must be trusted with the ability to exercise their discretion, to determine how they can discharge their functions in a way that helps preserve secrecy.

Human support, coupled with technological solutions, can facilitate 11 (2016) 7 SCC 761 248 the effective participation of blind and low vision judges in our judicial system. Therefore, the notion that these judges cannot be effectively accommodated stems more from the mental block that this is beyond the realm of possibility than from the logistical challenges in getting this done. 13. 8. Furthermore, the learned counsel submitted an interview series titled 'It Can Be Done' featuring21 interviews of legal professionals with disabilities from six jurisdictions, published by Rahul Bajaj, Anusha Reddy and Madhavi Singh, discussing RA for PwDs. Additionally, he also cited real world examples of successful judges with disabilities, few of whom are as follows: (i) T. Chakkaravarthy from Tamil Nadu, who was appointed as III Additional District Munsif in Coimbatore in the year 2009, lost his eyesight due to smallpox at age 4.

(ii) Brahmananda Sharma, who in 2013 secured rank 83 in the Rajasthan Judicial Service Examinations and is presently working as a Civil Judge and Judicial Magistrate of Sarwar in the city of Ajmer District, lost his eyesight due to glaucoma at the age of 22. (iii) Ms. Helen Keller, the deaf-blind disability rights activist, was appointed for a nine-year term as a judge of the European Court of Human Rights in 2011. Since 2020, she has held the esteemed position of an international judge at the Constitutional Court of Bosnia and Herzegovina. Despite their respective disabilities, there was no evidence to suggest that they were unable to perform their judicial duties effectively. 13. 9.

By way of reply to the submissions made on the side of the High Court of Madhya Pradesh, the learned counsel submitted that the approach of the High Court in seeking the opinion of the Dean Medical College, Jabalpur, reflects a closed-minded stance and an inherent bias against individuals who are blind or have low vision, are deaf or hard of hearing, or have cerebral palsy, autism, intellectual disabilities, specific learning disabilities, mental illness, or multiple disabilities. The learned counsel argued that the High Court, in effect, framed a leading question to elicit a predetermined response from In Re: Recruitment of Visually Impaired in Judicial Services the Dean. Consequently, the Dean rendered his opinion in a non-speaking order, devoid of any legally tenable rationale or justification. The assumption that blindness necessarily impairs the performance of judicial duties is rooted in the outdated Medical Model of disability, which conflates impairment with disability.

While impairment pertains to a bodily or mental condition, disability arises from the interaction of impairment with external barriers, be they physical, socio-economic, political, or cultural. The denial or failure to provide reasonable accommodation effectively deprives individuals of an appropriate environment, amounting to a violation of Sections 3(2)(3), and (5) of the RPwD Act 2016 read with Articles 5(3) and 2 of UNCRPD. Exclusion of Blind Persons from Judiciary amounts to both de jure and de facto equality as the exclusion is not in furtherance of any legitimate State interest, rather it amounts to denial of representation of Blind persons in the Judiciary without following due process of Law. 13. 10. The learned counsel further submitted that both Rule 6 A and the exemption sought by the High Court are unconstitutional as they violate Articles 14 and 16(1) read with Section 3 of the RPwD Act 2016.

Rule 6 A is unconstitutional as it is innocent to the principle of RA and the exemption is vitiated as the State Commissioner for Disability has mechanically adopted the opinion of the Dean, Medical College Jabalpur, which did not account for and rather overlooks the decision of the Union Government through notification dated 04. 01. 2021 which identifies 'Posts of judges, Magistrates subordinate judiciary' as suitable for PwD including Blind Persons. This said classification is not based on intelligible differentia and does not have any nexus with the purpose sought to be achieved by the High Court. Besides, Rule 6 A is also in violation of International Principles and Guidelines on Access to Justice for Persons with Disabilities 2019. Para 7.

1 of these guidelines reads, "The right to equal access to justice requires that persons with disabilities have the opportunity to participate directly in adjudicative processes and be involved in various roles in the administration of justice on an equal basis with others. States should ensure that persons with disabilities are able to act as judges, lawyers, prosecutors, witnesses, 250 jurors, experts and court officials in the justice system without discrimination. " In this connection, para 7. 2(b) also reads, "Remove all disability-related barriers, including laws, that prevent persons with disabilities from being judges or jurors or serving in any other justice related positions". The learned counsel submitted that these guidelines are in direct response to and serve as a catalyst for Article 13 of the UNCRPD, which guarantees the right of PwDs to access justice.

The learned counsel also invited the attention of this Court to the Vienna Convention on the Law of Treaties, 1969 (VCLT), which has assumed the status of customary law thereby, restraining the State from exercising power in contravention of its treaty obligations. 13. 11. Finally, the learned counsel submitted that in order to foster justice for PwDs, Society must abandon negative ontology of disability. The quest for epistemology to eliminate inequality and to ameliorate the overall state of PwDs must be driven by the virtue of respect for difference. Besides, criteria for assessment of competence should not be influenced by Ableist and paternalistic considerations. To combat injustice and to promote inclusivity for PwDs, the idea of 'Nothing about us without us' has to be countenanced by assigning appropriate value to lived experiences of PwDs. B. IN RE: RECRUITMENT OF PwD CANDIDATES IN RAJASTHAN JUDICIAL SERVICE [S. M. W. (CIVIL) No. 6 of 2024] 14.

This suo motu writ petition arises from a letter sent by a visually challenged law student to the Hon'ble Chief Justice of India, complaining about lack of transparency in Judicial Service Examinations for PwD candidates in Rajasthan. According to him, while the Rajasthan Public Service Commission consistently mentions reserved posts for PwD in its examination notifications as mandated by Rule 10 of the Rajasthan Judicial Service Rules, 2010, the final results published by the High Court of Rajasthan fail to reflect any such reservations. It was further stated that the High Court of Rajasthan justifies this practice by citing 'horizontal' reservation for PwD candidates and claiming that separate cut-offs are unnecessary. However, it was submitted that reservations for women, widows, divorcees among others, which are horizontal In Re: Recruitment of Visually Impaired in Judicial Services reservations, are provided with separate cut-off marks.

Therefore, the letter petitioner has requested this court to intervene in this matter and uphold justice and equality. 15. The respondents are the High Court of Rajasthan and the Government authorities. During the pendency of the aforesaid suo motu writ petition, one Rekha Sharma filed an application seeking permission of this Court to intervene in this matter. In her affidavit, she stated that on 09. 04. 2024 the High Court of Rajasthan at Jodhpur issued an advertisement for Civil Judge Cadre, wherein out of the total 222 vacancies, 9 posts were reserved for PwBD candidates. The applicant, who has a 40% permanent physical disability in her eyes, appeared in the preliminary examination and qualified for main examination under the category of PwBD. In the main examination, the applicant secured 109 marks out of 300, which is about 36. 3% of the total marks and 40. 5 marks out of 100 in Law Paper-I and II, which is about 40. 5%. 16.

The applicant further stated that as per Clause 23 of the advertisement, a PwBD candidate would be deemed to be eligible for the interview, if he has obtained minimum 30% marks in each Law Papers and 35% marks in aggregate in the Main Examination. In the case of the applicant, she had secured more than 30% marks in each Law Paper and 35% marks in aggregate in the Main Examination, however, she was not called for the interview. In the said circumstances, the applicant submitted that she is a necessary party and would be affected by the order, if any, passed in this case. Therefore, she has filed the present application. C. AYUSH YARDI VS. STATE OF MADHYA PRADESH AND OTHERS [SLP (C) No. 12179 of 2024] 17. According to the appellant, he is a person with Benchmark Disability and suffers from Thalassemia, which results in physical weakness and fatigue and requires regular blood transfusions among other challenges.

He, along with other candidates, challenged the amendment to the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 dated 23. 06. 2023 as well as the consequential advertisement dated 17. 11. 2023 issued by the High Court of Madhya Pradesh. The amendment proposed to substitute Rule 7, which prescribes the eligibility criteria to appear in the preliminary examination of the Madhya Pradesh Judicial 252 Service examination i. e. , in addition to basic requirements, such as citizenship of India, L. L. B. Degree etc. , a candidate must also meet the requirement of 3 years of practice at the bar or pass in all examinations in the first attempt, with an aggregate score of at least 70% in case of general and other backward class categories and 50% in case of SC/ ST categories. Further, the advertisement dated 17. 11.

2023 clarified that to qualify for the exemption from the 3-year practice requirement, a candidate must have passed all examinations without appearing in a supplementary examination or availing of the Allowed to Keep Terms (ATKT) provision. 18. The appellant secured an aggregate of 67% in his L. L. B. degree, but was unable to clear his first semester on the first attempt due to his disability, and as a result of the same, he had to appear for a supplementary examination under ATKT. Consequently, the amendment rendered him ineligible to participate in the judicial service examination. Therefore, he filed W. P. No. 30465 of 2023 to set aside the said amendment and advertisement, insofar as it fails to provide any relaxation of the rules for PwD candidates. The High Court dismissed the writ petition filed by the appellant as well as other writ petitions, by order dated 01. 04. 2024 which is impugned herein. Submissions of the learned counsel for the appellant 19.

The learned counsel submitted that in order to be eligible to write the exam, a candidate must have either completed three years of practice or obtained more than 70% marks in the first attempt while doing their law course, in which case, they are exempt from the three compulsory years of practice. While this rule has been relaxed for candidates belonging to the SC and ST Category, no such relaxation has been given to the persons with disabilities. Resultantly, the appellant, who obtained an aggregate of 67% and suffers from 40% disability, is no longer eligible to participate in the selection process. Hence, the appellant challenged the amended rule on the ground that specially-abled candidates ought to have been given relaxation. However, the High Court upheld the amended rule and dismissed the batch of writ petitions.

In doing so, it failed to examine the amendment in the context of persons with disabilities and treated the appellant's challenge on par with that of fully abled candidates. 19. 1. According to the learned counsel, the uniform application of a cut-off rule of 70% marks in the first attempt to all candidates In Re: Recruitment of Visually Impaired in Judicial Services is arbitrary and irrational. Different colleges and universities have different marking schemes. Even the highest scoring candidates from top law schools, such as, Faculty of Law, Delhi University and National School of India University, Bengaluru, might not be able to meet this criterion. Applying this criterion to all candidates including persons with disabilities is unfair and arbitrary. As far as fully abled candidates are concerned, the consequence of not meeting this eligibility criterion is that they can acquire eligibility to participate in the selection process after completing three years of practice at the bar.

However, this may not be a viable option for persons with disabilities. Most public places, including Court rooms and Court complexes are not disabled friendly, lacking infrastructural facilities making it difficult for persons with disabilities, particularly those with visual impairments, mobility impairments or other benchmark disabilities, to practice. 19. 2. It was further submitted that for the appellant, who suffers from Thalassemia, practicing in Courts would be physically strenuous and extremely challenging and therefore both limbs of the proviso to the eligibility criteria, i. e. , passing all papers on the first attempt or securing an aggregate score of 70%, should not be made applicable to persons with disabilities. A physically disabled candidate may not be able to cope up with the physical levels of activity required by an advocate, such as walking, climbing stairs, carrying heavy files etc.

, but may still have the mental ability to perform judicial duties, which do not require the same level of physical exertion. In the circumstances, the learned counsel submitted that insisting on 3-year practice is unfair in respect of candidates with benchmark disability, who may not have secured 70% in aggregate, or had to take a supplementary examination, especially if the latter resulted from their disability. The proviso is therefore discriminatory and arbitrary as it treats the unequals equally thereby violating Article 14 of the Constitution of India. 19. 3. Therefore, it was contended that the amended Rule 7 and the consequential advertisement dated 17. 11. 2023 are arbitrary, unconstitutional and liable to be set aside, insofar as they do not provide a specific exemption for persons with disabilities and all persons with disabilities, who are otherwise qualified (such as, 254 possessing L. L. B. , etc.

) should be permitted to appear in the preliminary examination, without insisting on the requirements of the proviso to Rule 7 of Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994. Submissions of the learned counsel for High Court of Madhya Pradesh 20. According to the learned counsel, the Special Leave Petitions viz. , SLP(C) No. 9570 of 2024 titled 'Garima Khare v. High Court of Madhya Pradesh' and SLP (C) No. 9885 of 2024 titled 'Tejas Tripathi v. State of Madhya Pradesh' filed against the same order impugned herein, have been dismissed by this Court vide Orders dated 26. 04. 2024 and 03. 05. 2024 respectively. 21. As far as the present appellant is concerned, the learned counsel submitted that the appellant participated in the selection process for the post of Civil Judge (Junior Division) for the year 2023, pursuant to the order of this Court dated 15. 12. 2023 in SLP(C) No. 27337 of 2024 and cleared the preliminary examination.

Thereafter, pursuant to the interim order dated 21. 03. 2024 passed by this court in S. M. W. (C) No. 2 of 2024, the High Court of Madhya Pradesh vide order dated 21. 03. 2024 in WP (C) No. 7452 of 2024 permitted all persons with disabilities candidates to participate in the main examination, provided they secured the minimum qualifying marks / minimum benchmark in their respective categories. Consequently, out of 35 PwD candidates, 31 candidates including the appellant herein, appeared in the main written examinations held on 30. 03. 2024 and 31. 03. 2024; and the result of the same for Civil Judge Junior Division (Entry Level), 2022, was declared on 10. 05. 2024. While so, this court by order dated 21. 05. 2024 in SMW(C) No. 2 of 2024, directed that if any of these 31 candidates had secured the requisite minimum marks prescribed for reserved (SC/ST) candidates, they shall be called for interview, subject to the outcome of the proceedings.

Accordingly, only one candidate, out of 31, became eligible for the interview, in terms of the order dated 21. 05. 2024. The appellant did not obtain the minimum benchmark for SC/ST category i. e. , securing 45 marks in each paper, and thus was not called for interview. However, this court vide order dated 28. 05. 2024 in SLP(C) No. 12179/2024, directed the appellant to appear for the interview for selection of Civil Judge (Jr. Division). Following this, the High Court of Madhya Pradesh preferred an In Re: Recruitment of Visually Impaired in Judicial Services application being I. A. No. 135745 of 2024 seeking clarification of the order dated 28. 05. 2024 stating that the appellant could have been permitted to participate in the interview only if he had secured the minimum qualifying marks for reserved (SC/ST) candidates in the main examination i. e. , 45% marks in each paper; there was no specific direction in the order dated 28. 05.

2024 with respect to minimum qualifying marks, except referring to its earlier order dated 21. 05. 2024 passed in S. M. W. (C). No. 2 of 2024, and the application is pending consideration before this court. Thus, according to the learned counsel, since the appellant has not secured the aforesaid benchmark, allowing him to participate in interview will cause prejudice to other remaining specially- abled candidates and is also likely to cause anomaly for future selection. D. ALOK SINGH VS. STATE OF MADHYA PRADESH AND OTHERS [SLP(C)No. 7683 of 2024] 22. According to the appellant, he is a person with disability having 40% permanent low vision.

It is his grievance that despite securing higher aggregate marks (written examination and interview) than two other selected candidates in the Physically handicapped category, the appellant was not selected for recruitment to the post of Civil Judge, Junior Division (Entry Level) in the 2021 Examination conducted by the Madhya Pradesh High Court, since in the interview he secured slightly lower qualifying marks. According to him, the requisite relaxations as mandated under the RPwD Act, 2016 were not applied, leading to the carrying forward of vacant seats for the persons with disabilities year after year, denying the appellant his rightful selection and also defeating the purpose of the RPwD Act, 2016. Therefore, he preferred W. P. No. 11175 of 2023 assailing the final result dated 18. 02.

2023 of the Government of Madhya Pradesh insofar as it relates to his non-selection to the vacant post under the Unreserved Category of the Physically Handicapped Quota for the post of Civil Judge, Junior Division (Entry Level). The High Court dismissed the said writ petition, by judgment and order dated 11. 01. 2024 impugned herein. Submissions of the counsel for the appellant: 23. The learned counsel submitted that the advertisement issued by the High Court of Madhya Pradesh for recruitment to the post of 256 Civil Judge, Junior Division (Entry level) provided for a 4 percent quota for PwD under Section 34 of the RPwD Act, 2016. The appellant applied for the said post and having qualified in both the preliminary and main examinations, proceeded for the interview process. However, his name did not find place in the final result of the Notification dated 18. 02. 2023, despite the availability of vacant posts under the Physically Handicapped (PH) quota.

According to the learned counsel, Section 34 of the RPwD Act, 2016 stipulates that vacant posts reserved for PwDs can be carried forward or filled by candidates from other categories in case of backlog only when no eligible PwD candidate is available. In the present case, the appellant secured 18. 1 marks out of 50 in the interview - falling short by less than 2 marks from the minimum qualifying requirement of 20 marks (i. e. , 40% of 50 marks). Therefore, it was submitted that the appellant should have been accommodated for appointment by respondent Nos. 3 and 4, rather than the post being left vacant and carried forward. 23. 1. The learned counsel further contended that in light of section 34 of the RPwD Act, 2016, the Central Government, vide its office memorandum dated 15. 01. 2018 issued directions for relaxation of standards of suitability in the case of PwBD candidates.

Further, clause 11 of the said Office Memorandum reinforces this by stating that there should be relaxation of standards of suitability where sufficient number of candidates from benchmark disabilities are not available. In Union of India v. National Federalism of the Blind,12 this Court in paragraphs 51, 52 and 54 observed that the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International Treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Further, this Court directed the authorities to issue orders modifying the Office Memorandum impugned therein and the subsequent Memorandums to compute the number of vacancies available for the disabled persons within a stipulated time and also directed implementation of the directions issued therein.

It was further observed that non- 12 (2013) 10 SCC 772 In Re: Recruitment of Visually Impaired in Judicial Services compliance with the reservation scheme for persons with disabilities should be treated as an act of non-obedience, and the Nodal Officer of the concerned Department, Public Sector Undertaking, or Government Company is responsible for its strict implementation. In the present case, out of 7 seats, only 2 were filled. Therefore, the standards should have been relaxed to accommodate the appellant considering his disability and