case no: 1/1011-5471/2008 in the matter of: shri. m.k.maheshwari b-block,

8/14/2019 Case No: 1/1011-5471/2008 in the Matter of: Shri. M.K.maheshwari B-Block,

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Case No: 1/1011-5471/2008

In the matter of:

Shri. M.K.Maheshwari

B-Block, 1st Floor, Laxmi Niwas47, Marashall Road, Chennai 600008

ComplainantVs.

Ministry of Human Resource & DevelopmentThrough the SecretaryShastri Bhawan, New Delhi

RespondentDate of Hearing: 23.07.2008 at 15:00 Hrs.

WITHCase No.1/1031-5545/08

In the matter of:

Shri Somai Deepak504, Parasmani Palace BuildingSector 18,Ulhasnagar-421003Dist. Thane (Maharashtra)

ComplainantVs.Ministry of Human Resource & Development

Through the SecretaryShastri Bhawan, NewDelhi

Respondent No.1

Indian Institute of TechnologyThrough the DirectorRoorkee, Uttarakhand-247667

Respondent No.2Date of Hearing: 23.7.2008

Present:

1. Shri M.K.Maheshwari, complainant in Case No: 1/1011-5471/2008 along with Counsel


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2. Shri Yatendra kumar, Under Secretary, respondent in case no1/1011-5471/20083. Lt. Col. A.K.Srivastava, respondent in case no 1/1031-5545/08

Date of Order: 7.8.2008

ORDER

Sh. M.K. Maheshwari, father of Sh. Rachit Maheshwari, Sh.Somai Jethanand C., father of Sh. Somai Deepak filed complaintsbefore Chief Commissioner for Persons with Disabilities statingthat their wards are persons with disabilities & aspirants of IndianInstitute of Technology Joint Entrance Examination (IIT-JEE)- 2008.However they are unfairly denied admission as Respondents arenot providing 3% reservation to persons with disabilities,relaxation in marks, fee concession and other facilities in a proper

fashion. As a result, only 20 candidates with persons withdisabilities against 210 reserved seats have qualified for the I.I.T.examination.

2. Section 39 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 hereinafter referred to as the Act which provides as under

39. All Government educational institutions and other educational

institutions receiving aid from the Government shall reserve not less than

three per cent seat for persons with disabilities.Honble Supreme Court vide Order dated 19.03.2002 inWrit petition (Civil) No. 115/1998 has endorsed the stand ofthe Chief Commissioner for persons with disabilities thatrelaxation in marks to all persons with disabilities at par withSC/ST candidates would bring parity amongst all persons withdisabilities irrespective of their vertical category.

3. The matter was thus taken up with the respondents andhearing was scheduled on 23.07.2008.

4. During the hearing, the mechanism adopted by therespondents for IITJEE examination emerged as follows:

a. Admissions to under-graduate programmes of IITs aremade through Joint Entrance examination (IIT-JEE). Forappearing in this examination the candidates belonging


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to general category must secure 60% or more marks inthe aggregate in their qualifying examination, whilecandidates who belong to SC/ST and PH category mustsecure 55% or more marks in aggregate in thequalifying examination. The students declared as

qualified and ranked in IIT-JEE are 1.15 times theavailable seats.

b. For qualifying the examination, the candidates mustscore cut off marks or more in each of the subjects i.e.Physics, Mathematics and Chemistry in the examinationas well as be in the merit list of his/her category.

c. Subject wise cut off marks are determined on the basisof top 80% candidates who qualify in each subject.

Relaxations in subject-wise cut off are given to reservedcategories. While OBC and PH (Physically Handicapped)category get benefit of 10% relaxation in cut off marks,SC/ST candidates get 40% relaxation in marks.

d. Common merit list is prepared amongst the candidateswho are able to secure cut off marks or higher in each ofthe paper and fall within 1.15 times available number ofseats. The marks scored by the last candidate in thiscommon merit list are considered as aggregate cut off.

e. Relaxation in aggregate cut off to reserved categories isprovided as follows till the required number of candidatesbecome available:(i) 10% to OBC and PH category lower than the

aggregate of the last qualified candidate in thecommon merit list.

(ii) For SC/ST 40% lower than the aggregate total of thelast qualified candidate.

f. Thereafter a common merit list and merit list of SC, ST,OBC and PH is prepared amongst the candidates whohave been able to score the aggregate cut off marks. If acandidate is both SC/ST and PH, then at the time ofcourse allocation he is considered in the category inwhich he or she gets maximum advantage.


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g. In IIT-JEE 2008 examination, 1.15 times the number ofavailable seats was 7903. Subject wise cut-off forPhysics, Chemistry and Mathematics worked out to be 5,0 and 3 respectively. The aggregate cut off worked out to172. After extending the relaxation as stated above, the

aggregate cut off for OBC/ PH was 155 and for SC/STcandidates it was 104. The number of PH candidateswho were able to score this cut off or higher marks was20, while for OBC, SC/ST it was 1134, 690 and 159respectively.

5. During the hearing the Learned Counsel for Shri M.K.Maheshwari pointed out that the respondents are not extendingrelaxation of marks to persons with disabilities at par with SC/STcandidates. Further the mechanism of fixing the aggregate cut off

marks for persons with disabilities on the basis of theperformance of general candidates is faulty and in violation ofSection 39 of the Persons with Disabilities Act, 1995. Hesubstantiated his submissions by stating that the respondentshave already fixed eligibility criteria of 60% marks in theaggregate in qualifying examination for appearing in the IIT-JEE.

They are also deciding subject wise cutoff for qualifying IIT-JEE.Thereafter the respondent should prepare separate merit list foreach reserved category of the candidates who score cut offmarks or more in each subject and declare such candidates who

fall within 1.15 times the available seats, as qualified instead offixing the aggregate cutoff on the basis of performance of generalcandidates. He stated that persons with disabilities as such face alot of difficulties in education. Recognizing the same, 3%reservation is extended to them by Legislature. Against these 3%seats the competition should just be amongst the candidates withdisabilities and they should not be unfairly compared withgeneral candidates or expected to perform at par with them. Thecommon merit list of top 7903 candidates practically does nothave any candidate with disability. Therefore fixing the aggregate

cutoff for them on basis of the marks scored by the last candidatein the common merit list amounts to fixing of unrealistic targetsor expectations from them which denies them their statutoryrights.

6. The complainant in case No. 1031-5545 did not appear inperson. But he sent an email in which he brought out that IIT


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prospectus states that in case a candidate belongs to more thanone category of relaxed norms, then he/she for the purposes ofranking shall be considered in all the categories in which he/shequalifies. Further under RTI, the Public Information Officer of IITRoorkee has stated that if the candidate is ST & PH both, then at

the time of course allocation he/she is will be considered in thecategory in which he/she gets the maximum benefits. This policyof respondents is not in line with the reservation provided by theDelhi College of Engineering, AIEEE and other colleges whereinreservation for persons with disabilities is provided in each of thevertical categories and separate merit list of such candidates i.e.SC-PH; ST-PH, OBC-PH and Gen-PH is prepared.

7. The representatives of the respondents submitted thatthe aggregate marks scored by the wards of both the

complainants are far below the aggregate cut off fixed forreserved categories i.e.155 for persons with disabilities and 104for SC/ST candidates. Hence they could not have qualified IITexamination even if relaxations in marks at par with SC/STcandidates are extended to them. Further, there is no PHcandidate scoring between 155 & 103 in IIT-JEE 2008examination, hence extension of this relaxation in marks at parwith SC/ST will make no difference to the results for the currentacademic year. They also submitted that the mechanism devisedfor fixing aggregate cut off has been well deliberated to ensure

that the candidates who were able to meet the high standards ofeducation & excellence set by IIT are selected for admissions. Byrelaxing the cut off marks for SC/ST and other reservedcategories necessary relaxation in standards have been provided.Rather than lowering the standards further, they providepreparatory course free of cost to ST/SC candidates who havebeen able to score near the cut off marks. Thereafter they areassessed through an internal examination and adjusted in thenext academic session against the vacant seats of the previousacademic session. They further emphasized that vertical &

horizontal interlocking of categories is done at the time ofselection and then at the time of course allocation to a candidatein the category in which he/she gets the maximum benefits. Thusthe submissions of the complainants that reservations are noteffected in a proper manner are totally misconceived. Theyfurther confirmed that even if the reserved seats are vacant theyare not de-reserved.


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8. It is observed that all examinations across the world havesome cutoff marks/percentage for qualification. This cut off marksvaries from one exam to another depending on the level ofexcellence/ output expected from the candidates who qualify that

examination. Setting of such cut off marks as eligibility foradmission cannot be termed arbitrary, irrational orunconstitutional. Rather setting of such cutoff also goes in favourof students, as low/unrealistic cutoffs could result in suchstudents getting admitted, who dont have aptitude & capabilityto qualify the exam and unnecessarily waste years in trying topursue courses that are beyond their capabilities.

Indian Institutes of Technology are known world over forvery high standards of education & excellence. To retain this high

level of excellence, they obviously have higher standards ofassessment, evaluation & qualification. The mechanism for fixingsubject wise and aggregate cut off is well studied and is beingimplemented since long. Further, the same mechanism is beingadopted to extend reservation to other categories and there is nodiscrimination against persons with disabilities per se. Hence thestand of the complainant that separate merit list of persons withdisabilities should be prepared and then after cut off decidedseparately for them, cannot be upheld.

9. It is further observed that interlocking of vertical &horizontal categories of persons with disabilities is only possibleat the time of selection i.e. declaration of the list of qualifiedcandidates. Thereafter a common merit list of persons withdisabilities and that of other categories is required asreservations in each of the courses are made for persons withdisabilities or SC/ST per se (and not for SC-PH/ ST-PH etc). It isseen that though the respondents are not announcing a separatemerit list for persons with disabilities as per their verticalcategories, they are reserving 3% seats in each of the vertical

categories at the time of selection. At the time of courseallocation a candidate belonging to more than one category ofrelaxed norms is considered in the category in which he/she getsthe maximum benefit. Hence the respondents are appropriatelyfollowing the reservation policy and the submissions of thecomplainants with regard to double category benefit are also notcorrect. However to bring about transparency in the system, itwould be more appropriate if vertical category wise merit list is


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prepared by the respondent for persons with disabilities from thenext academic session.

10. Nonetheless the respondents should note that ascompared to other marginalized groups, persons with disabilities

especially Visual and Hearing impaired are at a disadvantageousposition because the education system in the country leaves a lotto be desired in terms of availability of suitable teaching andlearning material, trained teachers, appropriate interfaces forconduction of examination, appropriate evaluation methodologyetc. The situation is all the more difficult in professional andtechnical courses.

Such a disadvantage in education of persons withdisabilities is well recognized. Thus relaxation in upper age (5

years in addition to relaxation admissible to them as per theirvertical category) has been allowed to the persons withdisabilities against reserved as well as unreserved vacancies inemployment. Establishments are similarly expected to providerelaxation in standards (like relaxation in qualifying marks,number of years of experience etc.) in selection against thereserved posts in case candidates with disabilities are notavailable on general standards.

11. In this instance, the respondents, while providing

relaxation in standards to students with disabilities, have addedclause to the effect that minimum cut off marks in entranceexamination for persons with disabilities will be same as for othercandidates in their respective vertical categories. Therebypersons with disabilities belonging to SC/ST categories getrelaxation of 40% marks. However the same benefit is notextended to persons with disabilities in Open/OBC categories,which is discriminatory and denies them equal opportunity tocompete on equal footing with the candidates with disabilitiesbelonging to other vertical categories as against the

endorsement of Honorable Supreme Court in Writ Petition(civil) No. 115/1998 quota in para 2 above.

Infact such relaxations (i.e. relaxation in marks at par withSC/ST candidates to all persons with disabilities) have beenextended to persons with disabilities in AIEEE examination fromyear 2007, by Delhi University, Jamia Milliya etc. Hence therespondents too need to extend relaxation at par with SC/ST


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candidates to persons with disabilities, irrespective of theirvertical categories.

12. Further, it is a matter of concern that only 20 candidateswith disabilities (against available quota of 237 or so) have been

able to qualifying IIT-JEE 2008 even after extending 40%relaxations in aggregate cut off marks. Such a level ofperformance of persons with disabilities can easily be traced tothe inherent disadvantages faced by them in education.Honorable Supreme Court in case of Indra Sawhney Vs.Union of India (1992 Supp. (3) SCC) while examining thelegality of reservation in favour of the disabled who are notclearly covered under Article 16 of the Constitution, pointed outthat mere formal declaration of the right would not makeunequals equal. To enable all to compete with each other on an

equal plane, it is necessary to take positive measures to equipthe disadvantage and the handicapped to bring them to the levelof fortunate advantaged.

Hence it would be desirable that benefit of preparatorycourse extended to SC/ST candidates is also extended to studentswith disabilities. In addition scholarship as extended to SC/STcandidates by Ministry of Social Justice & Empowerment, GOI forpreparing for various competitive examinations also needs to beextended to them. Such positive initiatives would definitely go a

long way in equipping the persons with disabilities and bringingthem at level playing field with their non-disabled counterparts.

13. In light of the above the respondents are directed:-

a. to extend relaxation in marks and other concessionsat par with SC/STs to all persons with disabilities,irrespective of their vertical categories from thecurrent academic session and accordingly giveadmissions to the candidates with disabilities who

have cutoff marks of 104 & above.b. to declare vertical category wise merit list forpersons with disabilities i.e. SC -PH; ST - PH, OBC-PHand Gen- PH from next academic session.

c. to extend the benefit of preparatory courses tostudents with disabilities from the next academicsession and then adjust them against vacant reservedseats on similar lines as SC/ST.


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d. to submit action taken report within 60 days ofreceipt of the order.

A copy of the order be sent to Secretary, Ministry of SocialJustice and Empowerment, GOI with advice to consider extension

of Scholarship or other such benefits to students with disabilitiesthat can assist them in preparation for various competitiveexamination.

14. The case is disposed of accordingly.(Dr. Manoj

Kumar)Chief Commissioner

case no: 1/1011-5471/2008 in the matter of: shri. m.k.maheshwari b-block,

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