1. The precise grievance of the petitioner is that the Department of Science & Technology, Government of India (Respondent No. 1 herein) has, in its Advertisement inviting applications from candidates for its INSPIRE Faculty Award, January-2018 (Session-I) (“Innovation in Science Pursuit for Inspired Research”) programme, not provided for age relaxation for candidates suffering from benchmark disabilities, of which the petitioner claims to be one. This, the petitioner asserts, violates Section 32(2) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “the RPWD Act”). Needless to say, the petitioner being overage, has been unable to apply for the said programme.
2. The petitioner was 34 years of age, as on the date of filing the writ petition.
3. The INSPIRE programme was launched, by Respondent No.1, in 2008, and aims at attracting talent for the study of science and careers involving research. Under the said programme, contractual research awards are to be granted, to “young achievers”, so that they can emerge as “future leaders in the long term”. A Ph.D, in science, mathematics, engineering, pharmacy, medicine, or agriculture related subjects, is necessary, to enable one to apply for the award. The stipulation regarding age, as contained in the conditions governing “Eligibility”, as set out in the 14th Advertisement for the programme (hereinafter referred to as “the Advertisement”), as published by Respondent No. 1 (in response whereto the petitioner desires to apply) reads thus:
a. “The upper age limit as on 1st Jan 2018 should be 32 years for considering support for a period of 5 years. However, for SC and ST candidates, upper age limit will be 35 years.”
4. Selected candidates are entitled, as per the Advertisement, to receive a consolidated amount equivalent to the scale of Assistant Professor of an IIT as fellowship amount. In addition, she/he would receive a Research Grant of Rs. 7 lakhs per year for 5 years. The Advertisement further stipulates that, in case the candidate (referred to as “the INSPIRE Faculty”) finds a permanent position during the tenure of his “awardship”, the fellowship amount would stand discontinued, but permits her/him to continue with the INSPIRE Faculty Scheme, availing the Research Grant, for the remaining period, to enable her/him to carry out research at the new position.
5. The last date for applying, pursuant to the Advertisement, was 28th February, 2018.
6. It goes without saying that the INSPIRE Scheme is eminently laudable, and does yeoman service to the cause of young researchers, and in fostering scientific and analytical talent.
7. The petitioner suffers from cerebral palsy. He has been issued a Disability Certificate, dated 20th May, 2016, which certifies him as suffering from permanent disability, of the said category. The writ petition highlights the fact that the petitioner is an achiever, who, after completing his studies from the Jawaharlal Nehru University (JNU), where he studied from 8th August, 2008 to 5th May, 2015, was awarded a Ph.D on 21st October, 2015. He claims to have taught underprivileged children, aspiring for the Bachelor of Arts programme at JNU, free of cost, between 14th November, 2017 and 19th December, 2017.
8. The writ petition sets out the various achievements of the petitioner, and also annexes his curriculum vitae, a perusal whereof discloses that the petitioner is, undoubtedly, prodigal. In fact, Ms. Sadiya Rohma Khan, arguing passionately for the petitioner‘s cause, would submit, he is also known as “the Indian Stephen Hawking”.
9. Be that as it may, this Court, while adjudicating on the dispute before it, cannot allow its decision to be permeated by the warmth of Ms. Sadiya Rohma Khan‘s arguments, but has to keep in mind, at all times, the “cold logic of the law”.
10. The case of the petitioner, as vocalised by Ms. Sadiya Rohma Khan, is that, in not providing age relaxation for candidates with disabilities, the Advertisement infracted the provisions of the RPWD Act. It becomes necessary, therefore, to examine the said statute and its provisions, especially Section 32 thereof, inasmuch as the petitioner chiefly seeks to rely on the said Section.
11. The RPWD Act is, preambularly, “an Act to give effect to the United Nations Conventions on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto”. The preambular declaration in the United Nations Conventions on the Rights of Persons with Disabilities (hereinafter referred to as “the UN Convention”, for convenience) reads, inter alia, thus:
a. “The Convention follows decades of work by the United Nations to change attitudes and approaches to persons with disabilities. It takes to a new height the movement from viewing persons with disabilities as “objects” of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.
b. The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.”
12. Some of the relevant provisions of the UN Convention merit, at this juncture, reproduction, thus:
“Article 1 – Purpose
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
Article 2. – General Principles –
1. Respect for inherent dignity, individual autonomy including the freedom to make one‘s own choices, and independence of persons;
3. Full and effective participation and inclusion in society;
4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
5. Equality of opportunity;
7. Equality between men and women;
8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.”
Article 4 – General Obligations
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;
h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities.
i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.”
13. Article 5, titled “Equality and Non-Discrimination”, reads thus:
“1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”
14. Article 24 of the UN Convention, which specifically addresses “Education”, reads as under:
“1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:
a. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
b. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential
c. Enabling persons with disabilities to participate effectively in a free society.
2. In realizing this right, States Parties shall ensure that:
i. Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
ii. Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
iii. Reasonable accommodation of the individual’s requirements is provided;
iv. Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
v. Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:
a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community;
c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deaf blind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.
4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.”
15. The preamble to the RPWD Act declares that it is aimed, avowedly, at fostering and furthering the principles enunciated in the UN Convention (supra). The goals, of the UN Convention, which the RPWD Act particularly aims at promoting are enumerated, in its preamble itself, as
“(a) respect for inherent dignity, individual autonomy including the freedom to make one‘s own choices, and independence of persons;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(g) equality between men and women;
(h) respect for the evolving capabilities of children with disabilities and respect for the right of children with disabilities to preserve their identities”.
16. “Person with benchmark disability” and “person with disability” are defined, in clauses (r) and (s) of Section 2 of the RPWD Act, thus:
‘(r) “person with benchmark disability” means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by a certifying authority;
(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others”.
17. “Specified disability” is defined, in clause (zc) of Section 2 of the RPWD Act, as meaning “the disabilities as specified in the Schedule”. Among the disabilities specified in the Schedule to the RPWD Act, is “cerebral palsy”, in sub-clause (b) of Clause A of S. No. 1 thereof. The said sub-clause defines “cerebral palsy” as meaning “a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specified areas of the brain, usually occurring before, during or shortly after birth”. A person suffering from cerebral palsy is, therefore, unquestionably, a “person with disability”, within the meaning of the RPWD Act.
18. Section 3 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”.
19. Section 16 of the RPWD Act deals with the duties of educational institutions thereunder, and reads thus:
“16. Duty of educational institutions
The appropriate Government and the local authorities shall endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall –
(i) admit them without discrimination and provide education and opportunities for sports and recreation activities equally with others;
(ii) make building, campus and various facilities accessible;
(iii) provide reasonable accommodation according to the individual‘s requirements;
(iv) provide necessary support individualised or otherwise in environments that maximise academic and social development consistent with the goal of full inclusion;
(v) ensure that the education to persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication;
(vi) detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them;
(vii) monitor participation, progress in terms of attainment levels and completion of education in respect of every student with disability;
(viii) provide transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs.”
20. As a sequel to Section 16, Section 17 enumerates specific measures to promote and facilitate inclusive education. The said provision, too, merits reproduction, in full, as under:
“17. Specific measures to promote and facilitate inclusive education.
The appropriate Government and the local authorities shall take the following measures for the purpose of section 16, namely: -
(a) to conduct survey of school going children in every five years for identifying children with disabilities, ascertaining their special needs and the extent to which these are being met:
Provided that the first survey shall be conducted within a period of two years from the date of commencement of this Act;
(b) to establish adequate number of teacher training institutions;
(c) to train and employ teachers, including teachers with disability who are qualified in sign language and Braille and also teachers who are trained in teaching children with intellectual disability;
(d) to train professionals and staff to support inclusive education at all levels of school education;
(e) to establish adequate number of resource centres to support educational institutions at all levels of school education;
(f) to promote the use of appropriate augmentative and alternative modes including means and formats of communication, Braille and sign language to supplement the use of one‘s own speech to fulfil the daily communication needs of persons with speech, communication or language disabilities and enables them to participate and contribute to their community and society;
(g) to provide books, other learning materials and appropriate assistive devices to students with benchmark disabilities free of cost up to the age of eighteen years;
(h) to provide scholarships in appropriate cases to students with benchmark disability;
(i) to make suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as extra time for completion of examination paper, facility of scribe or amanuensis, exemption from second and third language courses;
(j) to promote research to improve learning; and
(k) any other measures, as may be required.”
21. Chapter VI of the RPWD Act contains “Special provisions for persons with Benchmark Disability”. Section 32, thereunder, reads thus:
“32.(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.”
22. It is in the conspectus of the above, that the claim of the petitioner is to be examined and appreciated.
23. Ingratiation, of the marginalised, into the societal diorama, is a constitutional imperative. Article 41 of the Constitution of India embodies, as a directive principle of State policy, the requirement for the State to, “within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. It is, therefore, the duty of citizen and State alike, to ensure that the marginalised do not remain marginalised, and are woven into the warp and weft of the common societal fabric. Even among the “marginalised”, the most marginalised are those who, by a cruel providence, have to suffer crippling physical disabilities – or, to use the more appropriate euphemism, “challenges”. Indeed, cosily ensconced in our ivory towers, it is hardly possible for the more “fortunate”, amongst us, to even visualise what transpires in the life of a person who suffers physical disablement, especially where such disablement spans the whole, or a substantial portion, of the life of the person concerned.
24. That said, the attitude, required to be exhibited in respect of, and the treatment, required to be extended to, such persons, extends beyond the peripheries of mere sympathy, or even empathy. It is essential that the “differently abled” are never actually meant to sense they are differently abled, or, for that matter, different, in any manner, from the rest of us. The differently abled are necessarily to be provided every means to enable them to become a part of the homogenous whole of humanity, of which they are an indispensable part. And, in its capacity as the sentinel on the qui vive, the burden is all the more heavy, on the shoulder of the judicial establishment, to ensure that all is done – remaining, of course, at all times within the well-delineated boundaries within which alone it can choose to peregrinate – to ensure that the rights of persons with disabilities are assiduously protected, nourished and fostered.
25. Cerebral palsy is not merely crippling. It is a motor neuron disorder which commences in early childhood, and causes stiffness, weak muscles and tremors. Sufferers from the ailment may often experience seizures, as well as difficulties in ordinary thinking and reasoning. Cerebral palsy, significantly, and permanently, affects the quality of life of the sufferer. It stands defined, in the Schedule to the RPWD Act, in the following terms:
“ ‘cerebral palsy‘ means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth.”
26. The administration of justice cannot be in the nature of a cocooned exercise, insulated from the common sensibilities and sensitivities, which humanity dictates. Courts are, therefore, while dealing with cases of persons with disabilities, and their rights and entitlements, necessarily required to adopt a pro-active approach, and cannot confine themselves within the straitjacket of common legalese and logomachy. Even while remaining aware of the defined limits of exercise of extraordinary jurisdiction, the court is required to ensure that these limits are not enforced so strictly, as to eviscerate the rights of persons suffering from disability. There can be no place for procedural and technical considerations, while examining such claims. Needless to say, at the same time, the Court cannot do a Don Quixote, and has to ensure that its order is confined to the jurisdiction vested in it.
27. In the context of the attitudinal approach to be adopted, while dealing with cases of persons with disability, one may usefully refer, to the introductory passages from a relatively recent decision of the Supreme Court, in Jeeja Ghosh v. U.O.I., (2016) 7 SCC 761, as penned by A. K. Sikri, J.:
“In the book on the rights of differently-abled persons authored by Joseph P. Shapiro, which is titled NO PITY [Joseph P. Shapiro, NO PITY: People with Disabilities Forging a New Civil Rights Movement (Indian reprint by Universal Book Traders, New Delhi 1993)], the first chapter, “Introduction” has the sub-title “You Just Don't Understand” and the very first sentence of the said book is: “Non-disabled Americans do not understand disabled ones”.
2. The present PIL, spearheaded by Jeeja Ghosh, who is herself a disabled person, with the support of the NGO ADAPT (Able Disable All People Together), bears testimony to the statement of Shapiro. Irony is that though the aforesaid remarks were made by Shapiro way back in the year 1993 and notwithstanding the fact that there have been significant movements in recognising the rights of differently-abled persons, much is yet to be achieved. India also has come out with various legislations and schemes for the upliftment of such differently-abled persons, but gap between the laws and reality still remains. Even though human rights activists have made their best efforts to create awareness that people with disabilities have also right to enjoy their life and spend the same not only with the sense of fulfilment but also to make them contribute in the growth of the society, yet mindset of large section of the people who claim themselves to be “able” persons still needs to be changed towards differently-abled persons. It is this mindset of the other class which is still preventing, in a great measure, differently-abled persons from enjoying their human rights which are otherwise recognised in their favour. Present case, though a PIL, got triggered by an incident which proves aforesaid introductory statement made by us.”
28. Paragraphs 43 to 45, of the same report, are equally evocative, and read thus:
“43. All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and give detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perception has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination. They are not looked down by people. However, they are not accepted in the mainstream either even when people sympathise with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which the disabled feel as their grievance is that others do not understand them.
44. As pointed out in the beginning, the very first sentence of the book NO PITY [ Joseph P. Shapiro, NO PITY: People with Disabilities Forging a New Civil Rights Movement (Indian reprint by Universal Book Traders, New Delhi 1993)] authored by Joseph P. Shapiro reads:
“Non-disabled Americans do not understand disabled ones.”
The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read:
“Non-disabled people do not understand disabled ones.”
For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these “invalid people” are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathise with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self-reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically underestimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non-disabled. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society. Says disability rights activist Judy Heumann:
“Disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives—job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheelchair.”
45. Helen Keller represents the mind of such disabled persons when she says “I am only one; but still I am one. I cannot do everything, but still I can do something; I will not refuse to do something I can do”.
29. With the above background, in appreciating whether Section 32 of the RPWD Act would apply to entitle the petitioner to relief as sought by him, it is necessary to understand the exact nature of the “INSPIRE” scheme.
30. Persons who are found to be entitled to the award of scholarship, under the INSPIRE scheme, are referred to as “INSPIRE Faculty”. The full moniker of the scheme, itself, is the “INSPIRE Faculty Award Scheme”. The scheme clarifies that it offers contractual research awards to young achievers and opportunity for independent research, in the near term, so as to enable them to emerge as future leaders in the long term.
31. The benefits available to scholars, under the INSPIRE scheme are set out thus, under Clause (d) thereof, which is titled as “amount and duration of each INSPIRE Faculty position”:
“d) Amount & Duration of each INSPIRE Faculty position
* Each selected INSPIRE Faculty shall be eligible to receive a consolidated amount equivalent to the scale of the Assistant Professor of an IIT as Fellow/ship amount. In addition, a Research Grant of Rs.7 lakh per year for 5 years shall also be provided to each successful candidate.
* The INSPIRE Faculty Award is for a maximum period of 5 (five) years.
* Each INSPIRE Faculty Awardee shall be regulated as per guidelines available at the website: www.online-inspre.qov.in and www.inspire-dst.gov.in. Candidates need to visit the website and read the guidelines for reference before applying in INSPIRE FacultyAward scheme.
* In case the INSPIRE Faculty finds a permanent position during the tenure of the position, the Fellowship amount shall be discontinued from the day the INSPIRE Faculty joins in permanent position but he/she may continue with the INSPIRE Faculty Scheme availing Research Grant for the remaining period to carry out research at the new position.
* The INSPIRE Faculty is eligible to apply for any competitive grants from funding agencies during the tenure of the INSPIRE Faculty position and would be favorably considered by DST for future support at the end of 5 years based on performance and technical merit.”
32. If one were to juxtapose Section 32 of the RPWD Act with the provisions of the “INSPIRE Faculty Scheme”, it is difficult for this Court to accept that students, who become entitled to the benefits of the said scheme, would, ipso facto, be entitled to the benefit of Section 32 of the RPWD Act which, clearly and unambiguously, refers to reservation of seats in government institutions of higher education and other higher education institutions, and to admission to such institutions of higher education. Sub-section (1), of the said Section 32, requires the government to reserve not less than 5% seats in government institutions of higher education, and other aided higher education institutions, for persons with benchmark disability, whereas sub-section (2) allows persons with benchmark disabilities an upper age relaxation of five years for admission in institutions of higher education.
33. No extensive process of ratiocination is necessary, to espy that grant of the award – or scholarship – under the INSPIRE Faculty Award scheme, cannot, by any stretch of imagination, be regarded as resulting in, much less amounting to, “reservation of seats”.
34. Though “institution” is an expression which is defined in clause (o) of Section 2 of the RPWD Act, as “an institution for the reception, care, protection, education, training, rehabilitation, and any other activities for persons with disability”, I am of the opinion that this definition cannot apply to Section 32 of the RPWD Act. As is the case with definition clauses in all statutory instruments, Section 32 of the RPWD Act, too, commences with a disclaimer, making the definitions, in the various clauses that follow, applicable “unless the context otherwise requires”. When Section 32 of the RPWD Act refers to “all government institutions of higher education” and “other higher educational institutions” and, in sub-section (2) thereof, again to “institutions of higher education”, it is obvious that such institutions cannot be limited to the type of institutions conceptualized in clause (o) of Section 2 of the RPWD Act. As such, the reference, in Section 32 of the said statute, to “institutions of higher education” would be to all higher educational institution, of which clause (1) would refer to institutions of higher education either run by the government or aided by it, and sub-section (2) to all institutions of higher education in general.
35. Once it is held that the definition of “institution”, as contained in clause (o) of Section (2) of the RPWD Act, cannot be applied while interpreting Section 32 thereof, but one must look elsewhere, in order to comprehend the legal connotations and contours of the expression “institution”.
36. P. Ramanatha Aiyar, in his classic treatise “The Major Law Lexicon”, provides the following two definitions of “institution”:
(i) “The word ‘institution‘, both in legal and colloquial use, admits of application to physical things. One of its meanings, as defined in Webster‘s Dictionary is ‘an establishment, especially of public character, or affecting a community.‘ The term ‘institution‘ is sometimes used as descriptive of an establishment or place where the business or operations of a society or association is carried on. At other times it is used to designate the organised body.”
(ii) “The word ‘institution‘ properly means an organisation organised or established for some specific purpose, though it is sometimes used in statutes and in common parlance in the sense of the building or establishment in which the business of such a society is carried on”.
37. In C.I.T. v. Charat Ram Foundation, (2001) SCC OnLine Del 247, this Court defined “institution” as “descriptive of an establishment or place where the business and operation of a society or association is carried on”.
38. Nearly a century and half ago, the following, somewhat abstruse, definition of “institution” is to be found in Lord Macnaghten in Mayor, & C. of Manchester v. Mcadam, (1) (1890-1898) 3 TC 491:
“It is a little difficult to define the meaning of the term ‘institution‘ in the modern acceptation of the word. It means, I suppose, an undertaking formed to promote some defined purpose, having in view, generally, the instruction or education of the public. It is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle.”
39. Whether one were to understand the expression as understood in common parlance, or one were to rely on the above definitions, it appears clear, to me, that grant of award, under the INSPIRE Faculty Scheme, cannot be regarded as “admission” to an “institution” of higher education, even if the said award were, ultimately, to facilitate the awardee to obtain admission to such an institution.
40. No doubt, while interpreting provisions in beneficial statutes, especially statutes which are in the nature of “social-welfare legislation”, one is entitled to strain the sinews a notch or two; however, that would not justify twisting the statutory provision completely out of shape, merely so as to confer benefits to the category of persons to whom the statute intends to provide succour. Purposive interpretation of the statute is, no doubt, the new “golden rule”, as held in Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619, but, howsoever purposive it may be, it has to remain, at all times, an exercise in interpretation of the statute, and cannot extrapolate itself to the rewriting thereof. Rewriting of the legislative edict is an exercise which has, if at all, to be left to the wisdom of the legislator, and it would be folly, therefore, for this Court, to usurp the functions assigned, by law, to it.
41. I am, therefore, unable to subscribe to the view, sought to be canvassed by the petitioner, that he is covered by the provisions of Section 32 of the RPWD Act.
42. However, clause (h) of Section 17 of the same RPWD Act mandates the appropriate government and local authorities to provide scholarship, in appropriate cases, to students with benchmark disabilities.
43. “Persons with benchmark disability” is defined, in clause (r) of Section 2 of the RPWD Act, already reproduced hereinabove, as including, inter alia, persons with not less than 40% of a specified disability, where the specified disability has not been defined in measurable terms, as certified by the certifying authority. Cerebral palsy is, as already noticed hereinabove, a “specified disability”, in the Schedule to the RPWD Act. It is not defined in measurable terms. The disability certificate annexed by the petitioner, to the writ petition, certifies that the petitioner is suffering from 75% disability. The petitioner is, therefore, a “person with benchmark disability” within the meaning of clause (r) of Section 2 of the RPWD Act.
44. Clause (h) of the Section 17 of the RPWD Act requires the appropriate government and local authorities to provide scholarship, in appropriate cases, to students with benchmark disability. Clearly, the case of the petitioner would merit coverage under this clause, as the “INSPIRE Faculty Award” is, in every sense of the term, a “scholarship”. Unfortunately – and, it must be said, regretfully –clause (h) of Section 17 of the RPWD Act, for no discernable reason, conditions the grant of benefit thereunder to “appro
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priate cases”, without setting out, even illustratively, the indicia which would decide where a particular case is, or is not, “appropriate”. The statute, therefore, confers absolute discretion on the appropriate Government, or public authority, to determine whether a person, suffering from benchmark disability, is entitled to the scholarship to which he/she aspires and applies. The discretion conferred on the said authority, by the said clause, being statutory in nature, it is not open to this Court to ignore the same. 45. At the same time, the said discretion – as is the case with every discretion vested by law – is expected to be exercised judiciously, and not capriciously, or even arbitrarily, keeping in mind the object of the RPWD Act, the ends that it seeks to acquire, and the purpose of the afore-extracted clause (h) of Section 17 thereof. 46. The petitioner is, undoubtedly, entitled to a consideration of his case, under the afore-extracted clause (h) of Section 17 of the RPWD Act. Conclusion 47. In the above circumstances, I am of the view that, while the prayers in the writ petition cannot be granted, the interests of justice would be subserved if the respondent is directed to reconsider the case of the petitioner, for grant of the “INSPIRE Faculty Award”, under clause (h) of Section 17 of the RPWD Act. In taking a decision thereon, the respondent would examine the case of the petitioner with the seriousness and empathy it deserves, especially considering the nature and extent of the petitioner‘s disability and the achievements and qualifications that the petitioner has managed to acquire, even while being so differently abled. 48. The authority considering the case of the petitioner is required to take a proactive approach, keeping in mind the avowed objective, of the government, of providing maximum inclusion to persons suffering from disability, so as to ingratiate them into the warp and weft of the normal societal fabric. 49. Given the seriousness of the matter, and the circumstances in which the petitioner is placed, I dispose of this writ petition with a direction to the respondent to take a decision on the claim of the petitioner, to grant of the “INSPIRE Faculty Award”. In order to do so, the authority considering the case of the petitioner would take all material contained in the writ petition, as well as the annexures thereto, including, perhaps not significantly, the curriculum vitae of the petitioner, for which purpose the learned counsel for the respondent is directed to supply, to the concerned authority, a copy of the writ petition, complete with all its annexures, within a period of two days from today. The authority is directed to take a decision, on the entitlement of the petitioner, to grant of the “INSPIRE Faculty Award”, within a period of ten days therefrom. The appropriate authority would also be guided by the observations contained in this judgment, while arriving at its decision. 50. In order to attempt to convince the authority regarding the merit of his claim, the petitioner is directed to present himself, either in person or through learned counsel, before the competent authority on 15th April, 2019 at 04.00 p.m. For this purpose, learned Counsel for the respondent is directed to intimate, to the petitioner, the officer before whom he is required to present his case, during the course of the day. 51. Needless to say, if the petitioner continues to remain aggrieved with the decision taken by the authority on his application, he would be entitled to re-approach this Court, and his rights in that regard stand reserved. 52. Jeeja Ghosh (supra) concludes with the following passage: “50. We would like to conclude this judgment by observing that to most disabled persons, the society they live in is a closed door which has been locked and the key to which has been thrown away by the others. Helen Keller has described this phenomenon in the following words: “Some people see a closed door and turn away. Others see a closed door, try the knob and if it doesn't open, they turn away. Still others see a closed door, try the knob and if it doesn't work, they find a key and if the key doesn't fit, they turn way. A rare few see a closed door, try the knob, if it doesn't open and they find a key and if it doesn't fit, they make one!” These rare persons we have to find out.” 53. Respectfully echoing the same sentiment, this writ petition stands disposed of, in the above terms, with no orders as to costs.