Mr. Naushad Ahmed Khan, Ms. Supriya Malik, Mr. Gabrilla D. Divia and Mr. Shubham v. Through

Judgment

2. Exemption allowed, subject to all just exceptions. The application is disposed of. W.P.(C) 2238/2025 & CM APPL. 10455/2025 (Stay) Facts W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14

3. The respondent, who is admittedly a candidate suffering from 63% Orthopaedic disability, as per Certificate dated 24 January 2014 issued by the Maharishi Valmiki Hospital, Govt. of N.C.T. of Delhi, under the Persons with Disabilities Act, underwent a process of selection for recruitment to the post DASS Grade IV. The said certificate reads thus: ―MAHARISHI VALMIKI HOSPITAL GOVT. OF N.C.T. OF DELHI POOTH KHURD, DELHI – 110 039 CERTIFICATE NO. MUH/DC/2012/623 DATE 24/1/14 CERTIFICATE FOR THE PERSON WITH DISABILITIES

This is to certify that Shri. SUMIT Age 18 Years Sex M Son of Shri Balram Residence of 316, VILLAGE AUCHANDI DELHI – 39 Registration No. MUH/PH/383 in case of Manifest deformity of (L) distal humerus & proximal migration of (L) radius He/She is physically disabled and has 63% Sixty Three (percent) permanent physical impairment in relation to his (L) Elbow Joint. Note: -

1. This condition is progressive/none progressive/likely to improve.

2. Re-assessment is not recommended/ is recommended after a period of _______ months/years. (Strike out which is not applicable)‖

4. The selection required the candidate to undertake a typewriting test, which was conducted on 3 January 2018. An admit card was issued to the respondent, to enable him to appear in the typewriting test. The typewriting test was, however, only qualifying in nature, and followed the written examination, the comparative merit in which constituted the basis of selection. W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14

5. As per the averments made by the respondent in OA 3188/2018 filed by him before the Central Administrative Tribunal1, from whose order this petition emanates, the petitioner was facing difficulty in typing in view of the orthopaedic disability suffered by him, which was in the elbow of his left arm. The OA averred that, owing to the pain that he was experiencing, the petitioners had requested the examiner to exempt him from having to undergo the typewriting test. However, it is not in dispute that the respondent did not produce, at the time, his disability certificate. Perhaps for this reason, the respondent was not granted exemption from undertaking typewriting test which he accordingly undertook.

6. A list of the candidates who had qualified the skill test was released by the petitioners vide Notice No. 665 dated 24 May 2018. It appears that 16 other candidates suffering from disability had been exempted from appearing in the typewriting test and figured in the list the candidates the said notice. They were, therefore, provisionally allowed to upload their e-dossiers subject to finalization of their claims and qualifications in the typewriting test.

7. Mr. Naushad Ahmed Khan, appearing for the DSSSB, does not dispute that, on the basis of his disability certificate, the respondent would have been entitled to exemption from undertaking the typewriting test. This, however, he emphasizes, was subject to the respondent producing the disability certificate before the examiner, at 1 ―the Tribunal‖ hereinafter W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 the time of undertaking the typewriting test, or prior thereto.

8. As the respondent‘s name did not figure in the notice dated 24 May 2018, he addressed representations to the petitioners on 4 June 2018 and 11 July 2018, seeking exemption from appearing in the typewriting test and, therefore, seeking that he also be shortlisted along with the other 16 physically disabled candidates figuring in the notice dated 24 May 2018.

9. 8 of the 16 orthopaedically disabled candidates who had been shortlisted after the typewriting test were finally selected. It is not in dispute that all of them scored less than the respondent on merit.

10. Aggrieved by the fact that he was not selected or granted exemption from skill/typewriting test, the respondent approached the Tribunal by way of OA 3188/2018, seeking that he be granted exemption from skill/typewriting test and be considered for appointment to the Post Code 61/15 in accordance with his merit in the written examination, keeping in mind his orthopaedically disabled status.

11. The DSSSB, as the respondent before the Tribunal, contested the OA, contending that the respondent was not entitled to relief as he had not produced his disability certificate at the time of undertaking the typewriting test, as required by notice dated 2 January 2018 issued by the DSSSB, which read as under: W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 ―I am directed to inform to convey the guidelines laid down by DOPT No. 14020/2014-Estt. (D) dated 22th April, 2015 for the physically handicapped persons/candidates who are seeking exemption from passing typing test may be read as under: Physically handicapped persons who are otherwise (a) qualified to hold clerical post and who are certified as being unable to type by the Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon where there is no such Board) may be exempted from passing the typing test. The term 'physically handicapped persons' does not (b) cover those who are visually handicapped or who are hearing handicapped but cover only those whose physical disability permanently prevents them from typing. In view of the above, candidates who are seeking exemption are required to give certificate from Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon that the he/she is unable to type at Skill Test Centre the on the date mentioned on e-Admit Card.‖

12. The second ground on which the respondent‘s claim was contested by the DSSSB was that the respondent raised the issue of not having been granted exemption from undertaking typewriting/skill test only after the results had been declared.

13. These contentions have also been reiterated before us by Mr. Naushad Khan, learned Counsel for the DSSSB. The impugned judgement

14. The Tribunal noted that the Department of Personnel and W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 Training2 had, in its OM dated 22 April 2015, specifically provided for exemption from physically disabled persons who were certified as unable to type by the medical board, from undertaking the typing test. The relevant clause from the aforenoted OM dated 22 April 2015 stands reproduced in para 8.1 of the impugned judgment and reads thus: ―a) Physically handicapped persons who are otherwise qualified to hold clerical post and who are certified as being unable to type by the Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon where there is no such Board) may be exempted from passing the typing test.‖

15. The Tribunal, noting the fact that the respondent was in fact in possession of a disability certificate issued by the competent authority, certifying that he had 63% permanent physical impairment in his left elbow joint, which would naturally disable him from undertaking the typing test or qualifying in it, and keeping in mind the fact that all orthopaedically handicapped candidates who were granted exemption from undertaking the typing test and who were ultimately selected had scored less than the respondent in the written examination, deemed it appropriate to grant the relief to the respondent. While doing so, the Tribunal has relied on a judgment passed by this Court in Raju Ranjan v UOI3.

16. We deem it appropriate to reproduce paras 11, 12, 15, 15.1 and 16 of the impugned judgment, thus: 2 ―DOPT‖ hereinafter 3 2023 SCC Online Del 4477 W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14

11. We have given anxious consideration to the default on the part of the applicant in not approaching the Competent Authority by providing a certificate as prescribed well in time. The applicant chose to appear in the typing test though he failed in the said typing test. In light of the provision as contained in the Right of person with Disability Act, it does not preclude the applicant from seeking exemption, more particularly, in light of the fact that the applicant had obtained 114 marks in the written examination. It is also a fact that the applicant suffers from a 63% 12. permanent physical impairment in relation to his left elbow joint, which would necessarily have been an impediment in performing well in the typing skill test. The applicant took a chance with the same, which by itself does not give grounds to the respondents not to consider the case of the applicant, as he has secured well, i.e., 114 marks in the written test. Keeping in view the pious objection of the Act for which it was enacted. ***** Since the applicant chose to participate in the typing test 15. without seeking exemption and failed. We direct that the applicant shall not be entitled to any consequential relief except notional seniority. It is also a matter of fact that written representation of the

15.1. applicant was also not addressed by the respondents.

16. In view of the above, the applicant is entitled to the grant of exemption towards the typing test, the OA deemed to be allowed. The actual benefits to the applicant shall be accorded from the date of the joining. This exercise shall be done within a period of two months from the date of receipt of a copy of this order.‖

17. Aggrieved by the aforesaid decision, the DSSSB has approached this Court by means of the present writ petition.

18. Mr. Naushad Khan who appears for the petitioner has been heard. Analysis W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14

19. Though both the contentions advanced by Mr. Khan are predicated on correct facts, they, in our considered opinion, do not make out a case for interference with the decision of the Tribunal.

20. It is correct that the respondent did not produce his disability certificate before the authorities at the time of undertaking the typing test. That said, however, it is not in dispute that, while undertaking the typing test, the respondent did seek exemption in view of the pain that he was suffering, which was not allowed.

21. The DSSSB does not question the correctness of respondent‘s disability certificate either. The disability certificate specifically certifies that the respondent was suffering from 63% permanent disability in his left elbow joint. It goes without saying that a person who suffers from disability of that nature and magnitude would not be able to undertake the typewriting test and that, had the certificate been produced, he would invariably have been entitled to exemption therefrom.

22. Incidentally, despite the orthopaedic disability from which the respondent suffered, he managed a typing speed of 33.46 words per minute in English, which was marginally below the basic requirement of 35 words per minute as per the Recruitment Rules. We commend the respondent, and the effort put in by him, despite the pain he must have experienced, which we can only conjecture.

23. The typewriting test, as we have already noted, was only in the W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 nature of qualifying examination and did not constitute the basis for comparative evaluation of the candidates. Comparative evaluation was on the basis of the written examination. It is also not in dispute that the final result included the scores of 8 orthopaedically handicapped candidates who had been granted exemption from undertaking the typewriting test. It is also not in dispute that all the said candidates scored less than the respondent in the written examination. Disability jurisprudence, and its raison d’ etre

24. The Right of Persons With Disability Act, 20164 was enacted to give effect to the United Nations Convention on the Rights of Persons With Disabilities5, adopted on 13 December 2006. The UN Convention envisaged, among the principles for empowerment of persons with disability, non discrimination, full and effective participation and inclusion in society, equality of opportunity and accessibility. According to the preamble to the RPWD Act, the objects that the Right of Persons With Disabilities Bill aimed at achieving included enjoyment, by persons with disabilities, of ―various rights such as right to equality, life with dignity, respect for his or her integrity, etc., with others‖. Section 3(1) of the RPWD Act requires the appropriate Government to ―ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others‖ and Section 3(3) proclaims 4 ―the RPWD Act‖ hereinafter 5 ―the UN Convention‖ hereinafter W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 that ―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‖.

25. Chapter IV of the RPWD Act deals with Skill Development and Employment, and Section 19(1), thereunder, proscribes every Government establishment from discriminating ―against any person with disability in any matter relating to employment‖. Provisions permitting exemption from undertaking qualifying tests in which persons with disability may, owing to the disability from which they suffer, be disadvantaged, are intended to foster the purpose of Section 19(1), and the philosophy undertaking the provision must, therefore, instruct every authority, including the Court, while administering and implementing such provisions. In tandem with sub-section (1), sub- section (2) of Section 20 requires every Government establishment to ―provide reasonable accommodation and appropriate barrier free and conducive environment to persons with disability‖.

26. Vikash Kumar v UPSC6 is a watershed decision in disability rights jurisprudence. The appellant before the Supreme Court, in that case, was also, incidentally, a person suffering from upper arm orthopaedic disability. In the context of reasonable accommodation, the following paragraphs from the report make for instructive reading: ―42. The fundamental postulate upon which the 2016 RPwD Act is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the Government to ensure that 6 (2021) 5 SCC 370 W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 persons with disabilities enjoy : (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non- discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognising a statutory right and entitlement on the part of persons who are disabled, Section 3 constitutional rights of persons with disabilities. implement and fulfilment of facilitate

43. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalised groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. UOI7 , noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognising the different needs of persons with disabilities, to pave the way for substantive equality. A.K. Sikri, J. stated in the above judgment : In international human rights law, equality is ―40. founded upon : non- two complementary principles 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 introducing anti- against unfavourable discrimination laws), but goes beyond in remedying discrimination against groups systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.‖ treatment by suffering 7 (2016) 7 SCC 761 W.P.(C) 2238/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:23.02.2025 16:14 (emphasis supplied) to say that, for a person with disability, The principle of reasonable accommodation captures the 44. 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 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 remember R.M. Lodha, J's (as he then was) observation in Sunanda Bhandare Foundation v. UOI8; Disabled Rights Group v. UOI9, where he stated : ―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.‖ (Emphasis supplied) ***** H. Reasonable accommodation

60. At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the 2016 RPWD Act. Intrinsic to its realisation is recognising the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In seeking to project these values as inalienable rights of the disabled, the 2016 RPWD Act travels beyond being merely a charter of non-discrimination. It travels beyond imposing restraints on discrimination against the disabled. The law does this by imposing a positive obligation on the State to secure the realisation of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be