The Delhi High Court dismissed a petition challenging the diversion of unfilled PwD seats in the NEET-UG 2022 cycle. The Court stated that in the absence of statutory provision under Rights of Persons with Disabilities Act, 2016 it cannot direct unfilled benchmark disability seats be given to persons with lesser disabilities
The petitioner initially sought a direction to allocate a medical seat under the PwD quota, an alternative prayer for a fresh medical board, and also challenged Section 32(1) of the Act as unconstitutional. Later, she gave up the constitutional challenge and addressed her plea to adjudication of her representation dated January 5 2023, in which she argued that diversion of unfilled benchmark disability seats to general category candidates defeated the purpose of the Act. She contended that Section 32(1) mandates a five per cent reservation for persons with benchmark disabilities but does not specify on the possibility of a contrary situation.The petitioner urged that such seats should be given to persons with disabilities who do not meet the forty per cent benchmark.The respondents reiterated highlighting the difference statute draws between “persons with benchmark disability” and “persons with disability,” and in the absence of such specific authority given under the Act, such diversion was impermissible.
The Division Bench of CJ Devendra Kumar Upadhaya and Justice Tushar Rao Gedela observed a contrast between Section 34 of the Act, which governs employment and expressly provides for carry-forward of seats and interchange of vacancies whereas Section 32 governed higher education which lacks any such mechanism. It also emphasized the necessity of not trivializing the needs of persons with disabilities by citing Vikash Kumar v. UPSC, (2021) 5 SCC 370,and observed that the needs of those whose disability may not meet the threshold of 40% but are nonetheless disabled enough, has to be considered for the grant of reasonable accommodation of a scribe and extra time. The Bench reiterated that it could not insert provisions absent in the statute. However, recognising that the objective of the RPwD Act is empowerment of persons with disabilities, it observed that there is a legislative gap that warrants policy intervention. The Court accordingly requested the Law Commission of India to address the issue and make recommendations for suitable amendments to the Act. Accordingly the petition was disposed of in these terms, and the Registry was directed to forward a certified copy of the judgment to the Law Commission of India.
Appearances:
For the Petitioner – Adv Mr. Rahul Bajaj. with Adv. Ms.Sarah
For The Respondents- Mr. Kavindra Kumar Gill, Senior Panel Counsel (for R-1/UOI) Adv Mr. T Singhdev w/Mr.Abhijit Chakravarty, Adv.Mr.Anum Hussain, Adv.Mr.Bhanu Gulati, Adv.Mr.Tanishq Srivastava, Adv.Ms.Yamini Singh, Adv.Mr.Sourabh Kumar, Adv.Mr.Vedant Sood and Mr.Ramanpreet Kaur (for R-2/NMC).
