Delhi High Court Calls For Amendment Of Disabilities Act To Carry Forward Unfilled PwD Seats In Colleges

The Delhi High Court has asked the Law Commission of India to bring amendment in the Rights of Persons with Disabilities Act, 2016, to include a provision for carrying forward a vacancy in higher educational institutions which could not be filled in on account of non-availability of persons with benchmark disabilities for admission, to the next academic year.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela referred the issue to the Law Commission of India for conducting a study and to make recommendations for appropriate amendments in the RPwD Act.

“In our opinion, a provision providing for carrying forward the seats in higher educational institutions, which cannot be filled in on account of non-availability of persons with benchmark disabilities, to the next academic year and/or a provision for diverting such seats to persons with disabilities will go a long way to fulfil the aims and objects of the RPwD Act,” the Bench said.

The Court was dealing with a plea moved by one Jahanvi Nagpal seeking directions on Union of India and National Medical Commission to allocate a seat to her against one of the vacancies under Persons with Disabilities category in NEET-UG 2022 cycle, in terms of Section 32 of RPwD Act.

An alternate prayer was made to issue a direction for a fresh medical examination with the fresh medical board at All India Institute of Medical Sciences for assessment of the extent of her disability.

Nagpal also prayed that Section 32(1) of the RPwD Act be declared as unconstitutional and violative of Article 14 of the Constitution of India.

Disposing of the plea, the Court said that there is a contrast between the scheme providing for reservation in public employment as contained in Section 34 of the Act, and the scheme of reservation in higher educational institutions as contained in Section 32.

It added that in case of public employment on account of non-availability of a suitable person with benchmark disability, the vacancy is to be carried forward in the succeeding year, whereas no such provision exists in Section 32 of the Act.

“The rule of carry forward is thus absent in Section 32 of the Act, whereas it is available in the matter of public employment as per Section 34 of the Act. In the absence of any provision in Section 32 of the RPwD Act, or anywhere else in the said Act, providing for carrying forward a vacancy which could not be filled in on account of non-availability of persons with benchmark disabilities for admission, to the next academic year, it is difficult for the Court to issue directions for such carrying forward,” the Court said.

Further, it observed that Section 32 of the RPwD Act does not provide that in case of non-availability of persons with benchmark disabilities, if a vacancy reserved under the provision remains unfilled, the same shall be directed to the persons with disabilities.

“However, having observed as above, we may also point out that since the prayer being urged by learned counsel for the petitioner lie in the realm of policy making, appropriate decision at the end of the Union of India may be required to be taken in this regard, for the purposes of achieving the object for which the RPwD Act, has been enacted by the Parliament, that is, for the purpose of achieving the object of meaningfully empowering the persons with disabilities,” the Court said.

It said that if the prayer being urged by Nagpal is to be acceded to by the Court, that would amount to reading something in Section 32 of the RPwD Act, which otherwise is absent.

The Bench added that it is the need of the hour for Union of India to address the issues raised by Nagpal so that the provisions of the RPwD Act can be applied with “full force and vigour” for empowering the persons with disabilities.

Counsel for Petitioner: Mr. Rahul Bajaj, Adv. with Ms.Sarah, Adv

Counsel for Respondents: Mr. Kavindra Kumar Gill, Senior Panel Counsel for R-1/UOI; Mr. T. Singhdev, Adv. with Mr.Abhijit Chakravarty, Mr.Anum Hussain, Mr.Bhanu Gulati, Mr.Tanishq Srivastava, Ms.Yamini Singh, Mr.Sourabh Kumar, Mr.Vedant Sood and Mr.Ramanpreet Kaur, Advs. for R-2/NMC

Title: MS. JAHANVI NAGPAL v. UNION OF INDIA & ORS

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