Delhi High Court bats for changes to RPwD Act to carry forward disability quota seats in colleges

The Delhi High Court on Tuesday asked the Law Commission to suggest legislative changes in order to ensure that the seats in higher educational institutions which cannot be filled due to non-availability of persons with benchmark disabilities (those with at least 40% certified disability), are carried forward to the next year or diverted to persons with disabilities [Ms Jahanvi Nagpal Vs Union of India & Ors.].

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela stressed that these changes will go a long way in fulfilling the aims and objectives of the Rights of Persons with Disabilities Act, 2016 (RPwD Act). 

“We thus find it appropriate to refer this issue to the Law Commission of India for conducting a study and accordingly to make recommendations for appropriate amendment(s) in the RPwD Act. Accordingly, we request the Law Commission of India to deliberate on the issues outlined in this judgment and make appropriate recommendations to the Union of India for incorporating the requisite amendment(s) in the RPwD Act,” the Court ordered. 

The Bench passed the order while disposing of a plea filed by one Jahanvi Nagpal seeking directions to the Central government and the National Medical Commission (NMC) to allocate a seat to her in the Persons with Disabilities category in National Eligibility cum Entrance Test (NEET)-UG 2022 exam. 

A direction was also sought to fill the seats reserved for ‘persons with benchmark disabilities’ from the 'persons with disabilities' category in case of non-availability of adequate number of ‘persons with benchmark disabilities’, instead of allocating those opportunities to general category candidates. 

After considering the case, the Court noted the contrast between provisions for higher education and public employment in the RPwD Act.

It observed that Section 34 of the RPwD Act mandates that unfilled posts reserved for persons with benchmark disabilities in government jobs must be carried forward or interchanged among disability categories before being opened to others.

No such safeguard exists in Section 32 with regard to higher education, resulting in potential loss of opportunities for disabled students, the Court stated.

The Bench ruled that the directions sought were in the realm of policymaking and directions cannot be issued to carry forward those seats.

“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 Bench said.

However, the Court underscored that the Central government must address the issues raised by the petitioner so that the provisions of the RPwD Act can be applied with full force and vigour for empowering persons with disabilities.

Therefore, it ordered the Law Commission to suggest appropriate changes to the statute.

Advocates Rahul Bajaj and Sarah appeared for the petitioner.

Senior Panel Counsel Kavindra Kumar Gill appeared for the Union of India. 

Advocates T Singhdev, Abhijit Chakravarty, Anum Hussain, Bhanu Gulati, Tanishq Srivastava, Yamini Singh, Sourabh Kumar, Vedant Sood and Ramanpreet Kaur appeared for NMC.

[Read Judgment]