Court on its Own Motion @APPELLANT@Hash State of Himachal Pradesh & Others

Sanjay Karol, J.

This Court took suo motu cognizance of a letter petition addressed by a student, namely, Indu Kumari, daughter of Shri Durga Singh, resident of

VPO Naini Khadd, Tehsil Bhatiyat, District Chamba, wherein she had highlighted the issue of denial of admission to her under 5% quota, as provided

in Rights of Persons with Disabilities Act, 2016 by the Himachal Pradesh University. The contention of the letter petitioner was that she had applied

for admission in M.A. (Political Science) in Himachal Pradesh University, Shimla under 5% quota reserved for disabled students under Section 32 of

the Rights of Persons with Disabilities Act, 2016. However, admission was denied to her and when she inquired, she was informed that the

respondent-University was providing only 3% reservation to the disabled students and that too, as per the provisions of the old Act, i.e., the Persons

with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. As per letter petitioner, as the students intake in the

concerned subject was 40, therefore, two seats were to be reserved for persons with disabilities in the Department of Political Science as per the 2016

Act, but ignoring the said provisions, only one seat had been reserved. It was on these basis that the letter petition was addressed to this Court.

While issuing notice on 11.08.2017, this Court had requested Mr. Arjun Lall, learned counsel, who was present in the Court, to assist as Amicus

Curiae.

In the course of hearing of the matter on 22nd August, 2017, this Court had passed the following order:

“Issue pertains to the implementation of the provisions of Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the Act).

Allegedly, Institutions imparting education and/or training, within the State of Himachal Pradesh are not providing reservations for students, who are

otherwise entitled for the benefit of the provisions under the Act. Section 32 of the Act mandates all Government institutions of higher education and

other higher educational institutions, receiving aid from the Government, that not less than 5% of seats shall be reserved for persons with benchmark

disabilities. Sub Section (r) of Section 2 defines “person with benchmark disability†and Sub Section (i) of Section 2 defines “establishmentâ€,

which includes Government and private establishments.

Mr. J.K. Verma, learned Deputy Advocate General invites our attention to communication dated 31.7.2017 that of Director Empowerment for the

SC, OBC, Minority and the Specially Abled, Himachal Pradesh, wherein all the departments of the Government have been “requested to

implement the provisions of the Actâ€​.

Well, this, in our considered view, would not serve the purpose. There is nothing on record to establish as to whether the Government has issued

any direction, directing the institutions of higher education, Government or Private, which are otherwise receiving aid from the Government, for making

reservation for persons with benchmark disabilities. It is true that respective educational institutions are not before us, but then it is the responsibility of

the Government to ensure complete and proper implementation of the provisions of the Act. It is an obligation, coupled with a duty, cast upon the

Government to ensure compliance of the statutory provisions. Mere “requestâ€​ has not helped the situation anyone bit.

Mr. Arjun K. Lall, learned Amicus Curiae has invited our attention to the several decisions rendered on the issue, not only by this Court in CWPIL

No. 30 of 2011, titled as Court on its own motion v. State of Himachal Pradesh & others; CWP No. 192 of 2004, titled as Ankush Dass Sood v. State

of H.P. & Others, as also the observations made by the Hon’ble Apex Court in Sunanda Bhandare Foundation Vs. Union of India and another,

2017 SCC OnLine SC 481, wherein it stands observed that statute operates in a broad spectrum and stress is laid to protect the rights and provide

punishment for non-implementation of statutory obligations.

Before we issue any further directions with regard to the implementation of the provisions of the Act, we direct the Chief Secretary to the

Government of Himachal Pradesh to file his affidavit dealing with the following aspects:-

a) Steps taken for implementing the provisions of Section 32 of the Act;

b) As to whether all institutions of higher education, Government or otherwise falling within the ambit and scope of Section 32 of the Act have

provided reservation of not less than 5%;

c) As to whether Indu Kumari, complainant before this Court, was eligible and entitled for admission in the reserved category so provided under the

provisions of the Act and if so, then the reason for not entertaining her application and admitting her in the reserved category;

d) As to whether there is a mechanism for redressal of grievances by the students who otherwise stand deprived of the statutory entitlement;

e) As to whether six more persons as pointed out by learned Amicus Curiae in his note dated 18th August, 2017, copy whereof stands supplied to the

State were denied admission on legitimate grounds.

Affidavit of compliance be positively filed within four days.

We also direct respondent No.2- Registrar, H.P. University to file his personal affidavit to similar effect within four days.

List on 29.8.2017.

We further direct that the complainant and four students, who stand denied admission/not admitted into the respective courses, if otherwise are

eligible, their cases shall be considered and be admitted to their respective courses in accordance with law.

Mr. Arjun K. Lall, learned Amicus Curiae points out that three students, namely, Ms. Muskan Thakur, Ms Sangeeta and Mr. Vinod Sharma have

yet not been provided Hostel accommodation and as such have to travel from far flung areas. Their cases for accommodation in the Hostel shall also

be considered by the University. The Registry is directed to forthwith supply complete paper book, in all respect, to all the learned counsel during the

course of the day.â€​

Thereafter on 05.09.2017, this Court had passed the following order:

“A perusal of the affidavit so filed by respondent No. 2-University demonstrates that as of now, i.e. for the Academic Session 2017-18, only 3%

seats have been reserved for the persons with disabilities. The explanation which has been given in the affidavit by the Registrar is that presently, the

Ordinance which is being followed by respondent No.2-University provides only for 3% reservation and further they are following the reservation

policy of the government of Himachal Pradesh, as per which only 3% seats can be reserved for the persons with disabilities except the department of

Physical Education. Be that as it may, in view of the provisions of Rights of Persons with Disabilities Act, 2016, wherein an express provision is there

in Section 32 of the same that 5% of seats are to be reserved for persons with disabilities, the act of the University of reserving only 3% seats for

persons with disabilities is totally unjustified and not acceptable being violative of the statute (supra).

Faced with this situation, Mr. J.L. Bhardwaj, learned Counsel for the University submits that respondent No. 2 shall explore the possibility of admitting

the candidates with disabilities in respective streams in which they want admission. He further submits that in courses which are being run by the

University, necessary decision in this regard shall be taken by the University itself and for admission in professional courses, University shall forthwith

take up the matter with the concerned statutory authorities apprising them of the peculiar circumstances of the case. The statement so made by Mr.

Bhardwaj is taken on record. Mr. Arjun K. Lall, learned Amicus is directed to hand over a list of candidates who are interested in seeking admission

in the H.P. University within three days alongwith certificates of the said candidates depicting their educational qualifications and thereafter, the

respondent- University shall admit/take steps for admission of the said candidates in the courses in which they are interested strictly on the basis of

merit within a period of 10 days. We make it clear that the number of candidates to be admitted against the quota of persons with disabilities shall not

exceed 5% of the total seats.

At this stage, learned Amicus Curiae submits that the University should also take steps to provide Hostel facility to the candidates who are admitted

under the quota for persons with disabilities. Mr. Bhardwaj has assured that the respondent-University shall sympathetically look into this aspect of the

matter also and provide rooms to persons with disabilities taking into consideration the total number of rooms available in the Hostels and the rooms

already being occupied by the persons with disabilities. List on 19th of September, 2017 for compliance.â€​

Article 21 of the Indian Constitution provides for the right to life an important facet of which is a dignified life. The Hon’ble Apex Court in

Bandhua Mukti Morcha vs. Union of India, (1984) 3 SCC 161, has held that the right to live with human dignity as enshrined in Article 21 derives its

life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42. These being the

minimum requirements which must exist in order to enable a person to live with human dignity and neither the central nor any State Government has

the right to take any action which will deprive a person of the enjoyment of these basic essentials. Where legislation is already enacted by the State

providing these basic requirements, particularly belonging to the weaker section of the community and thus investing the right to live with basic human

dignity, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of

such legislation what does amount to general of protection guaranteed under Article 21.

A Five-Judge Constitution Bench of the Apex Court in M Nagaraj vs. Union of India, (2006) 8 SCC 212, has held that the expression “life†in

Article 21 of the Indian Constitution does not connote mere physical or animal existence. The right to life includes right to live with human dignity. It is

the duty of the State not only to protect human dignity but also to facilitate it by taking positive steps in that direction. No exact definition of “human

dignity†exists. It refers to the intrinsic value of every human being which is to be respected. It cannot be taken away. It cannot be given. It simply

is. Every human being has dignity by virtue of his existence.

A Nine Judges Constitution Bench of the Apex Court in K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1, has reaffirmed that human dignity

is a component of Article 21.

In Common Cause vs. Union of India, (2018) 5 SCC 1, a Five Judges Constitution Bench of the Apex Court observed that a life without dignity is

like a sound that is not heard. Dignity speaks, it has its own sound, it is natural and human. The Apex Court further added that dignity does not

recognize or accept any nexus with the status or station in life. The singular principle that it pleasantly gets beholden to is the integral human right of a

person. Law gladly takes cognizance of the fact that dignity is the most sacred possession of a man.

A Five Judges Constitution Bench of the Apex Cuort in Writ Petition (Criminal) No.76 of 2016, titled as Navtej Singh Johar vs. Union of India, has

reiterated that the fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an

important aspect of the right to life under Article 21 of the Indian Constitution. Also in the international sphere the right to live with dignity had been

identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The Constitutional Courts of the

country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for

without the right to live with dignity, all other fundamental rights may not realise their complete meaning.

Accordingly, the Apex Court in a number of cases has broadened the spectrum of Article 21 of the Indian Constitution and has in unequivocal

terms reaffirmed and reiterated that Article 21 envisages a right to a dignified life.

A social welfare legislation such as the Act of 2016, the legislative intent of which is (a) respect for inherent dignity, individual autonomy, including

the freedom to make one’s own choices and independence of persons; (b) non-discrimination; (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; (f)

accessibility; (g) equality between men and women; and (h) respect for the evolving capacities of children with disabilities and respect for the right of

children with disabilities to preserve their identities, seeks to reduce the hardship of those who incur certain disabilities for after all the law seeks to

ensure a dignified life to them as well.

By denying the statutory right to those for whose upliftment and empowerment such a beneficial legislation has been enacted the State failed in

ensuring a dignified life to the disabled persons, rather the real beneficiaries of the Act and thus added to their hardships more so when the State is

also duty bound by virtue of Article 41 of the Indian Constitution to make effective provisions for securing the right to work, to education and to public

assistance in cases of unemployed, old age, sickness and disablement and in other cases of undeserved want.

As a matter of fact, it is imperative that the authorities must look into the real grievances of the visually impaired people and the State through the

Universities and all Educational Institutions must have a role of loco parentis and must show its concern to redress the grievances in proper

perspective.

The Act of 2016 which has been brought into existence to give effect to the United Nation Convention on the Rights of Persons with Disabilities

encompasses sea-change and conceives of the implementation of the beneficial provisions of the Act and realization of the numerous benefits

engrafted under the same.

We are of the considered view that in the backdrop of the laudable policy inherent within the framework of the legislation, the same must be

interpreted in a manner so as to ensure that the benefits so guaranteed are made available to the differently abled and does not remain to be a distant

dream.

Hon’ble the Apex Court in Rajive Raturi vs. Union of India (Two Judges), (2018) 2 SCC 413, while dealing with the rights of the visually

impaired vis-a-vis the issue of accessibility requirements in respect of safe access to roads and public transport and the duty of the State with respect

to the same has held that right to dignity, which is ensured in our constitutional set-up for every citizen applies with much more vigour in case of

persons suffering from disability and, therefore, it becomes imperative to provide such facilities so that these persons also are ensured level playing

field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well.

In Jeeja Ghosh vs. Union of India (Two Judges), (2016) 7 SCC 761, while dealing with the rights of disabled and differently abled persons, the

Apex Court awarded damages of `10,00,000/- to the petitioner, a differently abled person, for the mental and physical suffering experienced by her as

she was forcibly de-boarded by the flight crew, because of her disability.

Stressing upon the duty of a welfare State, in relation to differently abled persons, a Full Bench of the Apex Court in Union of India vs. National

Federation of Blind (Three Judges), (2013) 10 SCC 772, held that the Union of India, 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.

Since the Act of 2016 is a meaningful attempt in assimilating the differently abled persons into the mainstream of nation’s life by providing

beneficial reservation to the extent of 5% in the higher educational institutions, it is, therefore, necessary that the Act be implemented in true letter and

spirit in all higher educational institutions and other higher education institutions receiving aid from the Government.

In the backdrop of aforesaid principles, on 31.10.2017, the following order was passed:

“Written notes, dated 30th October, 2017, filed by learned Amicus Curiae¸ are taken on record. Respondents to respond to the same. We also

request Mr. Dilip Sharma, learned Senior Advocate, to assist the Court as Amicus Curiae in the matter. Registry is directed to forthwith supply

complete paper book to Shri Dilip Sharma, learned Senior Advocate. Registrar (Judicial) to ensure compliance of the order.

Let Chief Secretary, Government of Himachal Pradesh, to file an affidavit, indicating the steps taken, thus far, for complying with the directions,

issued by this Court vide judgment, dated 4th June, 2015 in CWPIL No. 30 of 2011, titled as Court on its own motion Vs. The State of Himachal

Pradesh and others. Needful be positively done within a period of one week. List on 13th November, 2017.â€​

It is evident that with the issuance of notification, dated 13th October, 2017, so issued by the Himachal Pradesh University, the percentage of

reservation of seats for the purpose of seeking admission for disabled students has been extended from 3% to 5%. This was so done only with the

Court monitoring the matter. For ready reference, we are reproducing the relevant portion of the notification as under:

“In compliance of orders passed by the Hon’ble High Court in CWPIL No. 103 of 2017 titled as Court on its own motion versus State of H.P.

and others dated 05.09.2017, the Hon’ble Vice Chancellor has been pleased to implement the Section 32 of the persons with Disabilities Act,

2016, circulated by the Government of India vide their letter dated 19.04.2017 under which the percentage of reservation of seats for the purpose of

seeking admission for disabled students has been extended from 3% to 5%. Therefore, all the teaching departments of Himachal Pradesh University

and Government Degree Colleges/Private affiliated Colleges are hereby directed to strictly comply with Section 32 of Ministry of Law and Justice

(Legislative Department) Gazette of India dated 27.12.2016 of the Persons with Disabilities Act, 2016 with immediate effect.â€​

In this background, the only issue which remains to be adjudicated is as to whether the respondent-University can have a running roster for the

purpose of identifying the number of seats which can be reserved in each academic session for persons with disabilities or not.

Unlike employment, in the stream of education, each academic session is a fresh academic session which is complete in itself, totally distinct and

distinguishable from the previous session or the next session.

The Rights of Persons with Disabilities Act, 2016 has been enacted to give effect to the United Nations Convention on the Rights of Persons with

Disabilities and for matters connected therewith or incidental thereto. Chapter VI of the Act, which deals with special provisions for persons with

benchmark disabilities provides in Section 32 for reservation in higher educational institutions. Said Section reads as under:

“32(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not

less than five percent 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.â€​

Thus, said statutory provision mandates that all Government institutions of higher education and other higher education institutions receiving aid

from the Government shall reserve not less than 5% seats for persons with benchmark disabilities.

As we have already mentioned above, in the field of education, each academic session is distinct and different from other academic session. Fresh

admissions are made in each academic session and there is no jurisprudence in educational law of “carrying forward a seatâ€, as there is in service

law with regard to posts/vacancies. In other words, with the issuance of prospectus for admission to a particular course, the rights of eligible

candidates crystallized for the academic session in question and these rights are not carried forward, because with the start of a fresh academic

session, a fresh prospectus is issued.

Hon’ble Supreme Court in Disabled Rights Group and another Vs. Union of India and others, (2018) 2 Supreme Court Cases 397 has held as

under:

“9. No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need

for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under

Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of

higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief

Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State

Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligation. Needless to mention, appropriate

consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall

be initiated against defaulting institutions.

………………..

There cannot be any dispute that the suggestions given by the petitioner, which are reproduced above, appear to be reasonable and are worthy of

implementation. However, at the same time, it would be appropriate to consider the feasibility thereof particularly with regard to the manner in which

these can be implemented. This task can be undertaken by the UGC. Likewise, the directions which are sought by the petitioners are in consonance

with the provisions contained in the 22 Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions:

35.1. While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the

provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions

mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar

Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the

BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

35.2. Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in

Universities/Colleges†are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the

UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners

appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in 23 respect of accessibility as well as

pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay

down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-

house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as

well as for implementation of the Schemes that would be devised by the Expert Committee.

This exercise shall be completed by June 30, 2018.

35.3. Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall

be placed before the Court.â€​

We are of the considered view that the reservation in educational institutions, as is provided under the Rights of Persons with Disabilities Act, 2016

and further the directions, which stand issued by Hon’ble Supreme Court in Disabled Rights Group and another Vs. Union of India and others

(supra), leave no room of doubt that in all Government institutions of higher education, as also other higher educational institutions receiving aid from

the Government, not less than 5% seats have to be reserved for persons with benchmark disabilities. This 5% reservation of seats has to be provided

each time when process for filling up the seats is initiated by the above mentioned institutions. There can be no running roster and for each academic

session, fresh roster has to be prepared, earmarking number of seats which are to be reserved for persons with benchmark disabilities, in view of the

total seats available.

Therefore, we dispose of this petition by directing that all institutions of higher education and other higher educational institutions receiving aid from

the Government in the State of Himachal Pradesh, shall not only reserve not less than 5% seats for persons with benchmark disabilities, but said

reservation to the extent of 5% shall be provided each time when the institutions initiate the process of admission to academic courses and there shall

be no carrying forward of seats so reserved for persons with benchmark disabilities nor a running roster in this regard shall be maintained by the

institutions.

Before parting, we place on record our appreciation for the efforts put in by Mr. Dilip Sharma, learned Senior Advocate and the learned Amicus

Curiae Mr.Arjun Lall, in assisting the Court in the adjudication of the petition. A copy of the judgment shall be made available to the Principal

Secretary (Education), Government of Himachal Pradesh, as also to the Vice Chancellor(s) of all the Universities situated in the State of Himachal

Pradesh, which are covered under the provisions of the Rights of Persons with Disabilities Act, 2016. Petition stands disposed of, so also

miscellaneous application(s), if any.