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NEET Exam Becomes Inclusive: The Madurai Bench of Madras Court Orders Special Accommodation for NEET Candidate with Medical Needs

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Case Title – Ms. Monisha Vs. The National Testing Agency & Anr.

Case Number – W.P. (MD) No. 9920 of 2024

Dated on – 26th April, 2024

Quorum – Justice G. R. Swaminathan

FACTS OF THE CASE

In the case of Ms. Monisha Vs. The National Testing Agency & Anr., the Appellant instituted a Writ Petition under Section 226 of the Constitution of India. The Writ Petition was instituted before the Madurai Bench of Madras Court seeking a Writ of Mandamus for instructing the National Testing Agency  (NTA), Respondent No.1, to allow the Appellant to wear a diaper and change it once or twice during the NEET (UG)-2024 Examination that is to be held on the 5th of March, 2024 since the Appellant, in the said case, suffers from the lack of control on urine due to a medical condition, which was developed when the Appellant was around 4 years old and was scalded by hot oil accidently and is taking treatment for LETM/NMO/Spectrum Disorder/ Neurogenic Bladder on OPD basic, for which she requires to wear a diaper continuously as well as change it more often.

CONTENTIONS OF THE APPELLANT

  1. The Appellant, through their counsel, in the said case contented that due to the prevailing medical condition, she needs to wear a diaper during the examination and requires to change it as and when needed.
  2. The Appellant, through their counsel, in the said case contented that denial of the permission to wear a diaper during the NEET (UG) exam and changing the same as and when required is a violation of the basic human rights of the Appellant under the Rights of Persons with Disabilities Act, 2016, especially the principle of reasonable accommodation.

CONTENTIONS OF THE RESPONDENT

  1. The Respondent, through their counsel, in the said case initially did not respond to the representation of the Appellant on dated 8th of March, 2024, compelling her to institute a Writ Petition.
  2. The Respondent, through their counsel, in the said case, contended that the dress code of the examination of NEET (UG)-2024, does not address the particular concerns raised by the Appellant in regard to wearing a diaper during the examination.

LEGAL PROVISIONS

  1. Article 14 of the Constitution of India prescribes that The State shall not deny to any person equality before the law or the equal protection of laws within the Indian territory, on grounds of religion, race, caste, sex, or place of birth
  2. Article 15(3) of the Constitution of India prescribes that The State may continue to make laws that provide special provisions for women and children
  3. Article 21 of the Constitution of India prescribes that No person shall be deprived of his life or personal liberty except according to the procedures established by the law
  4. Section 20(2) of the Rights of Persons with Disabilities Act, 2016, mandates that no government establishment shall discriminate against any person with disability in any matter relating to the employment
  5. Section 17 of the Rights of Persons with Disabilities Act, 2016, expects the appropriate government and local authorities to take specific measures to promote and facilitate inclusive education
  6. Section 2(y) of the Rights of Persons with Disabilities Act, 2016, defines the term “Reasonable Accommodation”
  7. Section 2(h) of the Rights of Persons with Disabilities Act, 2016, defines the term “Discrimination” in relation to disability

ISSUES

  1. The main issue of the case whirls around whether the principle of reasonable accommodation should be unfurled to individuals with special needs, despite them not falling in the ambit of disabilities recognized by the Rights of Persons with Disabilities Act, 2016?
  2. Whether the request of the Appellant to wear a diaper and change the same during the ongoing examination of NEET (UG)-2024 is justifiable under the provisions of the Constitution of India and pertinent legal principles?

COURT ANALYSIS AND JUDGMENT

The court in the case of Ms. Monisha Vs. The National Testing Agency & Anr., observed that although the Rights of Persons with Disabilities Act, 2016, does not overtly cover individuals with special needs outside its recognised disabilities, the principle of reasonable accommodation should be applied to all the individuals with special needs. The Court, taking into consideration, the medical condition of the Appellant and the indispensability to wear a diaper as well as a change it as and when required, the court held that the denial of this facility to the Appellant would amount to discrimination under the Article 14 of the Constitution of India. The court, in this present case, instructed the examination authorities to accommodate the special needs of the Appellant during the NEET (UG)-2024 examination by allowing her to wear a diaper as well as a change it as and when required. The court stressed on the gravity of furnishing the apt facilities, inclusive of adequate toilet amenities and sanitary products, for all the candidates, specifically girls, to evade discrimination and assure a fair examination process.

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Judgement Reviewed by – Sruti Sikha Maharana

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Supreme Court Directs Bombay High Court to Scrutinize Legality of Advocates’ Filed ‘Minutes of Order’

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Case Title: Ajay Ishwar Ghute and Ors V. Meher K. Patel and Ors

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

An Arbitration Petition was filed under the Arbitration and Conciliation Act, 1996 before single judge of Bombay High court wherein consent terms were filed in the arbitration petition preferred by the first respondent. In terms of the consent terms the learned single judge recorded that the process of handing over the possession of the suit property by the respondents to the first respondents as commenced. The disputes were related to lands of Parsi Dairy Farm. The seventh respondent filed an interim application after two years of filing the consent terms by stating that High court had directed the Police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms, which according, to the seventh respondent could not be done as local persons obstructed the work. The learned single judge of the Bombay High court disposed the interim application by directing Police/Tahasildar/ Collector/ Gram Panchayat office and all other Government authorities to offer assistance to construct a wall to safeguard the suit property. The persons who had obstructed the construction of the wall were not part to the arbitration proceedings/ interim application. An application was filed to Deputy Superintendent of Land Records by first respondent and five others for measuring the land who vide later dated 20.11.2021 informed the first respondent that several persons have objected, in writing, in carrying out the survey. Hence, holding an enquiry was necessary. First and second respondent filed a writ petition under Article 226 of the constitution for non-compliance with the orders of the Arbitration Petition regarding survey and construction of compound wall. The persons who raised objections were not impleaded in the Writ Petition. The Division Bench on 09.03.2022 ordered the Superintendent of Police to be present. The Superintendent of Police filed an affidavit stating that local tribals have gathered an impression that they were attempted to be illegally dispossessed and they insisted that the lands be demarcated before constructing the compound wall. The District Superintendent of Land Records vide an affidavit stated that there are certain persons to whom the petitioners and others have sold small portions of land and if a compound wall is constructed the third parties are likely to get landlocked. The Division bench without noticing the contentions of the above Government officers, instead of directing impleadment of the affected parties passed an order in terms of ‘Minutes of order’ dated 16.03.2022, for issuing a direction to survey authorities to carry out demarcation of the boundary and to direct the police to provide protection for constructing the compound wall.

Contentions of the appellant:

Of the thirty review petitioners Nos. 7-18 were shown as interveners in the “Minutes of order” though they had not engaged any advocate. The said interveners never met the advocate who is shown to have signed ‘Minutes of order’ on their behalf. The appellants had rights in respect of several properties which were likely to be adversely affected by the construction of the compound wall. The principles of Natural justice were not followed before permitting the construction of the compound wall. The impugned order based on ‘Minutes of order’ is completely illegal and vitiated by the non-joinder of the necessary parties.

Contentions of the respondent:

The compound wall had been built in such a manner that no person was landlocked or in any manner inconvenienced. The owners of the adjacent lands continue to enjoy unhindered and unfettered access to their respective land.

Legal provisions

Article 226- Writ Jurisdiction of High Court.

Issue: 

Whether the High court was justified in passing a order while exercising Writ Jurisdiction under Article 226 of the constitution of India permitting the first and second respondent to construct a compound wall under police protection in terms of “Minutes of Order”?

Court’s Analysis and Judgement:

The court summarised conclusions regarding the concept of Minutes of order as follows:
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court.
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum.
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded.
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.

It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

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Judgement reviewed by- Parvathy P.V.

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Appeals against the Contempt orders of Central Administrative Tribunal (CAT) available only before the Supreme Court and not High Court: Allahabad High Court

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Case title: Dr Brajendra Singh Chauhan & Ors. Vs Central Administrative Tribunal & Ors

Case no.: Writ Application No. – 602 of 2024

Order on: March 22nd, 2024

Quoram: Justice Vivek Kumar Birla and Justice Donadi Ramesh

Facts of the case

The petitioners who were initially appointed as Short Term Medical Officers had approached the Central Administrative Tribunal (CAT), Allahabad Bench and sought to issue an order to the respondents for their appointment as regular Assistant Medical Officers. The CAT ruled in favour of the petitioners. However, the petitioners alleging non-compliance of the order by the respondents again approached the CAT by filing a contempt petition under the provisions of the Contempt of Courts Act, 1971. The Tribunal noting a substantially compliance of the order by the respondents disposed of the application. Aggrieved by the same, the petitioners appealed before the Allahabad High Court under Article 226 of the Constitution.

The Respondent’s Counsel submitted that the writ petition is not maintainable under Article 226 by citing Section 17 of the Administrative Tribunal Act, 1985 (AT Act) in conjunction with Section 19 of the Contempt of Courts Act, 1971 (CC Act).

Legal Provisions

Article 323A – It empowers the Parliament to enact the law providing for adjudication or trial by Administrative Tribunals and specifies the jurisdiction and powers of such Tribunals including their power to punish for contempt.

Section 14 & Section 15 of the AT Act – It specifies the jurisdiction, powers and authority for the Central Administrative Tribunal and State Administrative Tribunal respectively.

Section 17 of the AT Act – It empowers the Tribunal to punish for contempt of court and exercise its power similar to the High Court with regard to provisions of the Contempt of Courts Act, 1971.

Section 12 of the CC Act – It provides Punishment for Contempt of Court.

Section 19 of the CC Act – It provides that the appeals against the orders of Tribunal shall lie as a matter of right to the Bench of at least two Judges of High Court, where the contempt order is passed by the Single Judge and it shall lie to the Supreme Court where the order is passed by the Bench.

Court’s Analysis and Judgement

The Court addressing the question of maintainability of writ petition filed before the High Court against the orders passed under the Contempt of Courts Act delved into Article 323 A, Sections 14 & 17 of the AT Act and Sections 11, 12 & 19 of the CC Act. It drew a distinction between the orders passed by the Tribunal under Section 14(1) of the AT Act and the order passed under Section 17 of the AT Act. The Bench noted that the while there is no statutory remedy of appeal available under the former, the latter provides the same by virtue of Section 19 of the CC Act. Further, it noted that since the contempt proceeding under Section 17 of the AT Act is dealt with by a bench of not less than two members, the orders passed would be appealable only before the Supreme Court. Hence, it ruled that any order or decision of the Tribunal under the Contempt of Courts Act shall be appealable only to the Supreme Court within 60 days from the date of the order.

The Court heavily relied on the precedence laid down in the cases of T. Sudhakar Prasad Vs Government of A.P. and L. Chandra Kumar Vs. Union of India and held that the orders of the Tribunal under the Contempt of Courts Act shall be appealable only before the Supreme Court and no writ petition against the same shall be maintainable before the High Court under Article 226 / 277 of the Constitution of India. Accordingly, it dismissed the present petition citing the lack of maintainability.  This judgement thus, throws light on the jurisdictional scope of appeals arising from contempt proceedings under Section 17 of the Administrative Tribunals Act and clears line on the exclusive appellate jurisdiction of the Supreme Court in matters regarding contempt orders issued by the Tribunal.

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Judgement Reviewed by – Keerthi K

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Application for grant of NOC should to be dealt with according to the rules in force at the date of disposal of the application: Kerala High Court

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Case Title: A.H. Sheriff v. State of Kerala & Ors. 

Case No: WP(C) No. 33324 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE MURALI PURUSHOTHAMAN 

Facts of the Case

The petitioner submitted Ext.P1 application dated 28.05.2019 before the District Collector for more than four years for grant of No Objection Certificate (NOC) for quarrying granite from revenue puramboke land. Ext.P5 Government Order bringing comprehensive guidelines for grant of NOC for mining of minerals from Government land was issued on 28.01.2021. The application of the petitioner was rejected by Ext.P4 order dated 21.09.2023, much after the issuance of guidelines in Ext.P5.

The case of the petitioner is that his application has to be considered on the basis of the law prevailing at the time of submission of the application and Ext.P5 order issued subsequently cannot be relied upon to reject the application. The learned Senior Government Pleader would contend that the petitioner has no vested right to have his application considered applying any particular provision and that he has not approached this Court before issuance of Ext P5 order, seeking a direction to consider his application for NOC.

Issues

  1. Whether the application for grant of NOC has to be dealt according to the law prevailing at the time of submission of the application or rules in force at the date of disposal of the application?
  2. Whether the applicant of NOC has a vested right to have an application for grant of NOC to be dealt with in a particular way, by applying particular provisions?

Court’s analysis and decision

The Hon’ble High Court of Kerala has relied on State of Tamil Nadu v. M/s. Hind Stone and Others [(1981) 2 SCC 205: AIR 1981 SC 711] while dealing with this writ petition. In Hind Stone case, the Hon’ble Supreme Court has held that the action of the Government in keeping applications for lease pending for long and later, rejecting them by applying a rule made subsequently, is not open to challenge. The Court observed that no one has a vested right to the grant of lease and none can claim a vested right to have an application for grant of lease to be dealt with in a particular way, by applying particular provisions and that in the absence of any vested right, the application has necessarily to be dealt with according to the rules in force as on the date of disposal of the application despite the fact that there is long delay since the making of the application.

Though there is inordinate delay on the part of the District Collector in considering Ext.P1 application for grant of NOC for mining of minerals from Government land, since during the pendency of the application Ext.P5 Government Order has been issued providing comprehensive guidelines for grant of NOC, the application of the petitioner has to be considered in the light of Ext.P5. Ext.P5 Government Order is not under challenge in this writ petition. There is no direction sought for and obtained by the petitioner from this Court for an early consideration of Ext.P1 application before issuance of Ext.P5 Government Order. As held by the Hon’ble Supreme Court, the petitioner has no vested right to seek Ext.P1 application to be considered by applying the procedure as applicable before the issuance of Ext.P5.

The writ petition fails and is, accordingly, dismissed.

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Written by- Afshan Ahmad

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Teachers cannot take the fall for the mistake of management during appointment of vacancy – Bombay HC

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TITLE : Sandeep Chudaman Shinde v The State of Maharashtra

CORAM : Hon’ble justice Ravindra V. Ghuge and Hon’ble Justice Y.G Khobragade

DATE : 8th December, 2023

CITATION : W.P No 7740 of 2021

FACTS

The petitioners were Education Officers and were granted a pay scale of Rs.9300-34800 and were regularly receiving their salaries. A complaint was filed by a stranger addressing the Deputy Director of Education, alleging that the Petitioners were illegally appointed as Educational Officers. The salaries of the petitioners were continuously withheld despite being in the service of shikshan Sevak for 3 years and having an ID.

After certain investigations, it was found that the petitioners were not appointed by following the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The petitioners got appointed for seats which was not vacant and the approval for ID was not submitted to the concerned office in appropriate time.

LAWS INVOLVED

Section 5 of the M.E.P.S Act, 1977 gives certain obligation for management of private schools.

It states that :

  • The management shall appoint for permanent vacancy as soon as they find a qualified person. The vacancy can be filled through an act of promotion as well.
  • The person appointed shall be in a probation period for 2 years except for Assistant teacher(probationary)
  • Assistant teacher(probationary) will be a teacher after 3 years of probation period
  • If the management decides the work of the teacher is not up to the mark during the probation period, they may terminate them with one month notice period. If he/she is reappointed, the previous probation period will be considered.
  • The management shall also fill temporary vacancies by appointing qualified persons.

ISSUES

  1. Whether the appointment of petitioners when there was no vacancy valid?

JUDGEMENT

The court held that the when the petitioners have been working for so long, the approval of appointment cannot be rejected by the Education Department unless theres any fraudulent or illegality turns out from the employment. The fault of the management should not be at the burden of the employees. The court stated that both the Petitioners are qualified and have the requisite qualifications for being selected and appointed as Shikshan Sevak and to be confirmed in employment as Assistant Teachers and if the Management was responsible for certain irregularities, the Petitioners could not be faulted.

The court also directed the Education Department to not entertain complaints from strangers and unconnected persons.

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Written by- Sanjana Ravichandran

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