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The Delhi High Court recently passed a judgement in the matter relating to a student belonging to person with disability who could not attain admission in two of the college of Delhi University namely Kirori Mal College and SGGCC. The Petitioner seeked to classify the category within the Person with disability Act and prayed to have been admitted in the applied college on the basis of Mental disability. The student produced the report from the Institute of Child Development and adolescent Health, Medicity, as contained in the report issued by the said Institute:

“On Wechsler Adult Performance Intelligence Scale, he obtained an IQ of 94 indicating Average level of current intellectual functioning. On NIMHANS Battery of Specific Learning Disability, the findings are suggestive of a short attention span along with Specific-learning disability (Dyslexia) in the area of reading, comprehension, spelling and writing skills and mathematics”.

Pursuant to the report, another assessment was conducted in a Government Hospital wherein the result found to be the same. He was issued disability certificate wherein it was showed that he suffers from learning disability up to 40%. The Petitioner obtained 43% marks and registered with the Central portal of Delhi University. The Petitioner put Sri Guru Govind Singh College of Commerce (SGCC) as the first choice and Kirori Mal College(KMC) as the second option bases on the proximity with residence. After the cut-off, both the college closed the admission procedure for the candidates suffering from disability.

The Petitioner alleged that SGCC and KMC were both defaulters, in the matter of preserving 5% of the seats, for admission to undergraduate courses, for persons with disability, as required by section 32 of the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as “the RPWD Act”). The final list of students, admitted undergraduate courses, for the 2018-2019 academic session indicated that 13 students, suffering from disability were admitted by the said college. This, avers the writ petition did not conform to the 5% requirement contemplated by RPWD Act. The KMC did not release the list at all. As Petitioner did not enter into his designated college, had to take admission in college far from the residence of the Petitioner.

The Respondent SGCC, filed its counter affidavit and contended that the requirement of 5% were fulfilled as the number of seats in the last academic year were 154 and five percent seats i.e. 8 seats were allotted to the students from the RPWD Act. The counter further submitted that the procedural aspect of the section of the RPWD were enforced as the cut-offs were eventually lowered, however, gradually. It mentioned that since the seats required by the RPWD Act was eventually met, hence, obligation under the RPWD Act stands discharged. The Respondent KMC, in its counter-affidavit, averred that, for the academic session 5% of the seats in the B.Com course is fulfilled. The cut off in the category comes around 89.25% and hence, the obligation under the Act got discharged. The Counsel for Petitioner in reply to the counter mentioned the section 16 wherein the reasonable accommodation has been talked about. He draws the attention within the category of person with disability, at least, 6 seats were to be reserved as per the the judgement in National Federation of the Blind v. Union of India. The counsel appearing for SGCC further pointed out that the admission reservation to be processed course-wise and further, the petitioner never applied for the admission in the college, hence, any direction cannot be issued.



Mr. Mani, counsel for Petitioner, seeks while on the point to fault the SGGC as well as the KMC for fixing the same cut-off for all students suffering with disabilities, pointing out that there was qualitative difference between a student who suffered, for example, a locomotive disability – which did not impact her, or his, intellectual or learning ability in any manner – vis-a-vis a student who suffered from learning disability, such as his client.

After hearing the argument, Justice C Hari Shankar mentioned in judgment that “writs cannot be issued, by any court governed by the rule of law, solely on the basis of sympathy or compassion. Compassion must always temper, but may never substitute, justice which, in its turn, cannot be administered, by a court, in a manner which would derogate from the law as it exists. It is true that law should never be applied in a manner which should sacrifice, at its alter, justice; equally true, however, is it that justice should never be dispensed in a manner which would violate the law, which is the vehicle thereof”.  A considerable chunk of the debate, at the bar, was devoted to the issue of whether the provision for reservation, for candidates with disabilities, could be implemented, by the colleges, on a course-wise basis. One feature that immediately comes to notice, regarding this submission, is that, while the circular dated 4th July, 2015, undoubtedly provided that reservations for students with disabilities would be implemented on a course-wise basis, no such caveat is to be found in the guidelines issued under the RPWD Act. In the absence of any such stipulation in the guidelines issued under the RPWD Act, however, it may be possible to argue that colleges could not be permitted to implement ―PWD reservation on a course-wise basis, in such a manner as to result in non-compliance with the mandate of Section 32 of the RPWD Act, which would require each college to necessarily fill 5% of its total seats in any academic year, with students with disabilities. This statutory mandate cannot be jettisoned by resorting to the concept of course-wise reservations, which, if anything, finds place only in the Circular dated 4th July, 2015 and nowhere else.

“Having said that, however, it would be for the University, or the Colleges, to fix cut-offs, for the admission of dyslexics and with persons suffering from intellectual or learning disabilities, at an appropriate or realistic level, so that they are able to secure admission and pursue their studies. As things stand, the fact remains that the petitioner has been unable to secure the cut-off marks fixed either by the SGGC or by the KMC for admission to the B.Com. course, of students suffering from disabilities, and, for this reason, has also been unable to apply to admission to either of the said colleges”, the bench mentioned.

“This court empathizes with the petitioner. Dyslexia is known to be an unfortunate, though rarely a disabling, disorder, and there are several instances of dyslexics, who have not only been ingratiated into the mainstream of society but have made names for themselves. Notable, among them, may be counted Alexander Graham Bell, Lewis Carroll and Leonardo da Vinci. Integration of dyslexics into the mainstream, therefore, is the need of the hour and dyslexics can hardly be allowed to remain, in this day and age, on the fringes of society”, the order mentioned.

The writ petition is accordingly dismissed, with no order as to costs.

 

-India Legal Bureau

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