The main legal point established in the judgment is that the right to assistance and extra time for persons with disabilities should not be limited to those with a 'benchmark disability', and the government must frame proper guidelines for access to scribes in line with the Rights of Persons with Disabilities Act and the directions of the Supreme Court.

JUDGMENT :

Gopinath P., J.

1. This appeal arises from the judgment of a learned Single Judge of this Court in W.P.(C).No.4499/2020. The Writ Petition was filed by one Blessen Baby, a minor represented by his next friend & father Sri.Baby. M.C. The grievance of the writ petitioner was that his request for the assistance of a scribe, and for extra time to complete the SSLC examination, was rejected, purportedly with reference to certain guidelines issued by the Government regarding the conduct of SSLC examinations in the State of Kerala. It is the specific case of the petitioner that the guidelines cannot run counter to the provisions of the Rights of Persons with Disabilities Act, 2016 [hereinafter referred to as the ‘Act’].

2. The learned Single Judge, on a consideration of the matter, found that the right to get the assistance of a scribe and for extra time to complete the SSLC examination was, in terms of the provisions contained in S.17(i) of the Act, to be extended to ‘persons with disability’ as defined in S.2(s) of the Act and not only to persons with a ‘benchmark disability’ as defined in S.2(r) of the Act. Accordingly, the Writ Petition was allowed, and appropriate directions were issued by the learned Single Judge. The learned Single Judge also found that the guidelines issued by the Government in respect of the conduct of the SSLC examination, which prescribes that a minimum 40% disability is required for getting the assistance of a scribe, is contrary to the provisions of the Act. On the facts, the learned Single Judge also noticed that the writ petitioner was a differently-abled child having a borderline IQ of 76 with dyslexia as certified by a competent Medical Board.

3. Inasmuch as the facts are as above, and noticing that the learned Single Judge has confined the directions issued to the facts of the case, and has further directed that the judgment shall not be treated as a precedent in any manner, we do not think that the State of Kerala or its officers had any grievance warranting the filing of this intra Court appeal under S.5 of the High Court Act. The Writ Appeal will, therefore, stand dismissed.

4. The learned counsel appearing for the 1st respondent/writ petitioner would alertly point out that the issue has been adjudicated by a three-member Bench of the Supreme Court in Vikash Kumar v. Union Public Service Commission & Others (2021 SCC OnLine SC 84), where, after an exhaustive survey of the provisions of the Act, the Court held: -

“F. Benchmark disability not a precondition to obtaining a scribe

35. It is in this backdrop that the Court must resolve the issue, bearing as it does on the rights of similarly situated candidates. The RPwD Act, 2016 embodies two distinct concepts when it speaks of (i) ‘persons with benchmark disabilities’ and (ii) persons with disability. In defining a person with benchmark disability, S.2(r) encompasses two categories: (i) a person with not less than 40 per cent of a specified disability, where the specified disability has not been defined in measurable terms and (ii) a person with disability where the specified disability has been defined in measurable terms, as certified by the certifying authority. In other words, S.2(r) encompasses both a situation where a specified disability has not been defined in measurable terms, in which event it means a person with not less than 40 per cent of the specified disability but also where a specified disability has been defined in measurable terms. A certification by the certifying authority is contemplated in regard to whether the person concerned does in fact meet the specified norm as quantified.

36. The second concept which is embodied in S.2(s) is that of a person with disability. S.2(s) unlike S.2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in S.2(r). S.2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sen