WP(C) No.2530/2024 Page 1 of 15

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 19.11.2024

Pronounced on: 17.12.2024

WP(C) No.2530/2024

CM No.6854/2024

SAJAD AHMAD MIR & ORS. ...PETITIONER(S)

Through: - Mr. Arif Sikandar Mir, Advocate.

Vs.

UT OF J&K & ORS. …RESPONDENT(S)

Through:- Mr. Ilyas Nazir Laway, GA, with

Mr. Younis Hafiz, Assisting Counsel-for R1 to R3

Mr. T. M. Shamsi, DSGI, with

Ms. Rehana Qayoom, Adv-for R4.

Ms. Shagufta Maqbool, Adv-for R5.

None for R6 to R7.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

Per Sanjeev Kumar „J‟

1) The petitioners claim to have participated in NEET-

UG Examination 2024, the result whereof was declared on

26

th July, 2024. On the declaration of the result of NEET

UG 2024 examination by the National Testing Agency and

receipt of merit list of the candidates belonging to the

Union Territory of Jammu and Kashmir, the J&K Board of

Professional Entrance Examinations [“the BOPEE”] vide

Notification No.78-BOPEE of 2024 dated 18.08.2024,

notified the schedule for online registration by the eligible

candidates to register themselves and upload their

WP(C) No.2530/2024 Page 2 of 15

documents on the official website of the BOPEE for

verification/updation of their category status. The

petitioners claim that their Union Territory rank is 3739,

4140, 4397, 4323 and 4343 respectively.

2) The grievance of the petitioners is that on checking

the online status of their application forms, it was found

that their claim to be considered under the category of

physically challenged persons stood rejected on the

ground that their disability as indicated in the certificates

uploaded was temporary and not permanent. It is further

pleaded by the petitioners that with a view to have the

redressal of their grievance, the petitioners approached

the Chief Secretary of the Government of Union Territory

and requested him to intervene in the matter. They also

approached the State Commission for Persons with

Disabilities, Union Territory of J&K but could evoke no

response.

3) The grievance of the petitioners is that the Chief

Secretary as well as the State Commission for Persons

with Disabilities, J&K, instead of addressing their

grievance, have left it to the BOPEE to determine the

eligibility of the petitioners to seek consideration under

the category of physically challenged persons. The BOPEE

has already made its stance clear that the certificates

WP(C) No.2530/2024 Page 3 of 15

indicating temporary disablement will not be considered

and the candidates possessing temporary disablement are

not entitled to be considered under the category of

physically challenged persons.

4) Having failed to seek any relief from the BOPEE, the

petitioners are before us raising a singular issue as to

whether or not a candidate with a temporary disablement

is eligible to seek the benefit of reservation provided for

the category of „physically challenged persons‟.

5) Mr. Arif Sikandar argues that the Rights of Persons

with Disabilities Act, 2016 [“RoPwD Act”] does not make

any distinction between temporary or permanent

disablement nor such distinction is made in the J&K

Reservation Act, 2004 and the rules framed thereunder.

He argues that in the absence of any such distinction

made in the statute, it is not open to the BOPEE to reject

the disability certificates of the petitioners and declare

them ineligible on the ground that the disability they

suffer is temporary in nature.

6) Strong reliance is placed by Mr. Arif Sikandar on the

judgment of Delhi High Court in the case of Anmol

Kumar Mishra (minor) vs. Union of India and others,

2021 SCC OnLine Del 5148, wherein a learned Single

WP(C) No.2530/2024 Page 4 of 15

Judge of Delhi High Court has held that temporary

disability is not a disqualification to avail the benefit of

reservation envisaged under the RoPwD Act.

7) Per contra, Mr. T. M. Shamsi, DSGI, and Mr. Ilyas

Nazir Laway, GA, would contend that the benefit of

reservation in professional institutions provided under the

J&K Reservation rules, 2005, is meant only for the

persons with benchmark disability and not for the persons

with temporary disability. Relying upon the Jammu and

Kashmir Rights of Persons with Disabilities Rules, 2021

[“the Rules of 2021”] issued vide S.O 91 dated 15

th March,

2021, Mr. Laway would argue that there is no scope to

consider a person with a temporary disability for the

benefit of reservation earmarked for the category of

physically challenged persons. He places reliance upon a

judgment of the Division of Delhi High Court in the case of

Bhavya Nain vs. High court of Delhi (WP(C)

No.5948/2019 decided on 08.05.2020), wherein the

Division Bench has affirmed that the benchmark disability

must be permanent to take the benefit of reservation and

that the temporary disablement is a disqualification for

availing the benefit of reservation.

8) Having heard learned counsel for the parties and

perused the material on record, it is seen that with a view

WP(C) No.2530/2024 Page 5 of 15

to giving effect to the United Nations Convention on the

rights of persons with disabilities and for matters

connected therewith, a comprehensive legislation known

by the name of RoPwD Act was enacted in the year 1995,

which was later on repealed and replaced by RoPwD Act,

2016. The legislation has been enacted to ensure full

participation and equal opportunity to the people with

disabilities. The relevant provisions of RoPwD Act, 2016,

which are essential for adjudication of the issue on hand

need to be noticed.

2(r) “person with benchmark disability” means a

person with not less than forty percent of a specified

disability where specified disability has not been

defined in measurable terms and includes a person

with disability where specified disability has been

defined in measurable terms, as certified by the

certifying authority;

2(s) “person with disability” means a person with long

term physical, mental, intellectual or sensory

impairment which, in interaction with barriers,

hinders his full and effective participation in society

equally with others;

9) From reading of the definitions reproduced above, it

is quite evident that a person with not less than 40% of

the specified disability, where specified disability has not

been defined in measurable terms, would be a person with

benchmark disability and the term “person with

benchmark disability” would also include a person with

disability where specified disability has been defined in

measurable terms as certified by the certifying authority.

WP(C) No.2530/2024 Page 6 of 15

10) With a view to understand the definition of „person

with benchmark disability‟ we need to advert to the

definition of „person with disability‟ as defined in Section

2(s), which means a person with long term physical,

mental, intellectual or sensory impairment which, in

interaction with barriers, hinders his full and effective

participation in society equally with others. The definition

of „specified disability‟ given in Section 2(zc) reads as

under:

“(zc) “specified disability” means the disabilities

as specified in the Schedule.”

11) The Schedule appended with the Act of 2016 divides

the specified disability into;

(1) physical disability;

(2) intellectual disability;

(3) mental behavior;

(4) disability caused due to chronic

neurological and blood disorders; and

(5) multiple disabilities including deaf

blindness etc. etc.

12) Section 32 of the Act makes a provision for

reservation of the persons with benchmark disabilities in

higher education. For facility of reference, Section 32 is

also set out below:

“32. Reservation in higher educational

institutions.—(1) All Government institutions of

higher education and other higher education institutions

WP(C) No.2530/2024 Page 7 of 15

receiving aid from the Government shall reserve not

less than five per cent seats for persons with benchmark

disabilities.

(2) The persons with benchmark disabilities shall be

given an upper age relaxation of five years for admission

in institutions of higher education.”

13) The source of reservation in the higher educational

institutions, which would obviously include the higher

professional and technical institutions, is Section 32 of

the Act. So far as the admissions to MBBS courses are

concerned, the Medical Council of India Regulations make

the provision for reservation in admissions by

incorporating the provisions of RoPwD Act, 2016. It is,

thus,beyond any pale of discussion that the benefit of

reservation for admission to MBBS courses is also

regulated by RoPwD Act, 2016 read with the J&K

Reservation Rules, 2005. At this stage we would like to

advert to the J&K Reservation Rules, 2005, which, in

terms of Rule 13, makes provision for horizontal

reservation in favour of physically challenged persons in

professional institutions. The term used in the Reservation

Rules, 2005, is „physically challenged person‟ which is a

new name given to the category of „persons with

disabilities‟ as defined under RoPwD Act, 2016.

14) From the discussion so far, we have reached at a

conclusion that the benefit of reservation for admissions

WP(C) No.2530/2024 Page 8 of 15

in professional institutions is available only to the persons

with benchmark disability and the persons with

benchmark disability could be as under:

(i) a person with not less than 40% of the

disability specified in the schedule; where

the specified disability has not been

defined in measurable terms;

(ii) a person with a long-term physical,

mental, intellectual or sensory impairment

which, in interaction with barriers,

hinders his full and effective participation

in society on par with others; provided

where the specified disability has been

defined in measurable terms as certified

by the certifying authority.

15) It is, thus, evident that the Act of 2016, prima facie,

does not make any distinction between a temporary or

permanent disability. However, when we compare Section

2(r) with Section 2(s), we find that reference to „person

with benchmark disability‟ to mean a person with not less

than 40% of specified disability, is to the disability which

is of permanent character and has not otherwise been

defined in measurable terms. The person with long term

WP(C) No.2530/2024 Page 9 of 15

physical, mental, intellectual or sensory impairment too

can fall in the definition of „person with benchmark

disability‟ provided such specified disability has been

defined in measurable terms as certified by the certifying

authority.

16) The Rules of 2021 issued vide S.O 91 of 2021, inter

alia, prescribe the procedure for obtaining certificate of

disability. Rule 26 is relevant for our purpose and is,

therefore, reproduced hereunder:

26. Issue of certificate of disability.—(1) On receipt of an

application under rule 24, the medical authority or any

other notified competent authority shall, verify the

information as provided by the applicant and shall assess

the disability in terms of the relevant guidelines issued by

the Central Government and after satisfying itself that the

applicant is a person with disability, issue a certificate of

disability in favour of the applicant in Form-II, III & IV as

the case may be.

(2) The medical authority shall issue the certificate of

disability within a month from the date of receipt of the

application.

(3) The medical authority shall, after due examination,—

(i) issue a permanent certificate of disability in cases

where there are no chances of variation of

disability overtime in the degree of disability ; or

(ii) issue a certificate of disability indicating the period

of validity, in cases where there is any chance of

variation overtime in the degree of disabilities.

(4) If an applicant is found ineligible for issue of certificate

of disability, the medical authority shall convey the

reasons to the applicant in writing under Form-V within a

period of one month from the date of receipt of the

application.

17) Reading of Rule 26 would show that the Medical

Authority shall, after due examination of the application

filed by the candidate, issue a certificate of permanent

disability in cases where there are no chances of variation

WP(C) No.2530/2024 Page 10 of 15

of disability overtime in the degree of disability or shall

issue a certificate of disability indicating the period of

validity in cases where there is any chance of variation

overtime in the degree of disability. This only indicates

that there could be disabilities having no chances of their

variation overtime in the degree of disability and there are

some disabilities which have chances of variation overtime

in the degree of disability. In the latter certificates, the

Medical Authority would indicate the period of validity.

18) Viewed in the aforesaid background, it is difficult for

us to say that to avail the benefit of reservation for

admission in professional institutions under the category

of physically challenged persons, a candidate must have

benchmark disability which is only of permanent in

nature. A long-term disability, which may not have

chances of variation in near future, could also be

considered to be a disability suffered by a person seeking

benefit of reservation.

19) We are in agreement with learned counsel for the

petitioners that the Act does not make any distinction

between a permanent or temporary disablement. However,

we, on the analysis of different provisions reproduced

hereinabove, have found that the purpose and object of

providing reservation to the physically challenged persons

WP(C) No.2530/2024 Page 11 of 15

for admission in professional institutions is to provide

such persons equal chances of participation in society

with others. A disability temporary duration which has the

chances of variation in degree in immediate future may

not come within the definition of a person with benchmark

disability. As we have noticed above, if we read Section 2(r)

and 2(s) along with other provisions of the Act of 2016, the

intent and object of providing reservation centers round

permanent disability. This benefit is given to an individual

who has to carry the weight of disablement through his

entire life and the one who would be deprived of equal

chances of participation in society. The purpose and object

of providing reservation, concessions and other facilities

to the persons with disabilities would not be achieved if

the benefit is given to the persons afflicted with temporary

disablements which are likely to dissipate or reduce in

degree with passage of time or with appropriate treatment.

A person with temporary disablement also does not carry

a stigma as is carried by a person suffering with

permanent disability. If the benefit of reservation is held

available even to the persons with temporary affliction of

disability, not only the purpose and object of legislation

would be defeated but also the benefit would be availed by

the persons with such temporary afflictions at the cost of

WP(C) No.2530/2024 Page 12 of 15

those who have suffered and are suffering permanent

disablement with stigma in their life. It is because of this

reason, the concept of benchmark disability is coined for

the purpose of granting the benefit of reservation only to

the persons with permanent and long term disabilities. We

are alive to a situation where the disability with forty

percent or more is certified to be one which has the

chances of variation in future. In such situation it would

be appropriate to treat even such disablement as

permanent disablement provided the Medical Authority

certifies that the disablement suffered by the candidate is

a long-term disablement. However, in the absence of any

guidelines on the issue, it would be difficult for us to say

as to how long would be a „long-term disablement‟. We can

only say that if the disability suffered by a person which

meets the benchmark requirement of 40% is likely to

subsist for more than ten years, it must be taken as long-

term disablement and cannot be termed as temporary

disablement so as to exclude such persons from the

benefit of reservation.

20) Having said that, we would now like to examine the

certificates of disability placed on record by the

petitioners. As per the disability certificate of petitioner

No.1, he suffers from visual impairment. As per the said

WP(C) No.2530/2024 Page 13 of 15

certificate, he suffers from 40% temporary disablement in

relation to his both eyes. The certificate has been

recommended for two years to remain valid till 5

th

November, 2025. The disablement suffered by petitioner

No.1, therefore, cannot be said to be long-term so as to

bring the petitioner No.1 within the definition of „persons

with benchmark disability‟. Petitioner No.2, as per the

certificate placed on record by her, suffers low vision (both

eyes) having been diagnosed as a case of Amblyopia. As

per the said certificate, petitioner No.2 suffers from 40%

temporary disablement in relation to her both eyes. The

certificate has been recommended for two years to remain

valid till 28

th July, 2026. The disablement suffered by

petitioner No.2, therefore, cannot be said to be long-term

so as to bring the petitioner No.2 within the definition of

„persons with benchmark disability‟. Petitioner No.3,

according to the certificate placed on record, suffers from

mental illness and suffers from 50% temporary disability

in relation to his brain. The certificate has been

recommended for five years to remain valid till 25

th

August, 2028. The disablement suffered by petitioner

No.3, therefore, cannot be said to be long-term so as to

bring him within the definition of „ persons with

benchmark disability‟. As per the certificate placed on

WP(C) No.2530/2024 Page 14 of 15

record by petitioner No.4, she suffers from Locomotor

disability.As per the certificate, she is suffering from 60%

temporary disability in relation to her lower limb. The said

certificate has been recommended for 9 years and 11

months to remain valid till 18.10.2030.The disablement

suffered by petitioner No.4, therefore, cannot be said to be

long-term so as to bring the petitioner No.4 within the

definition of „persons with benchmark disability‟. The

certificate placed on record by petitioner No.5 reveals that

she suffers from Locomotor disability. As per the said

certificate, respondent No.5 suffers from 52% temporary

disability in relation to her left lower limb. The said has

been recommended for three years to remain valid till

09.01.2026.The disablement suffered by petitioner No.5,

therefore, cannot be said to be long-term so as to bring the

petitioner No.5 within the definition of „persons with

benchmark disability‟.

21) In view of the above discussion, none of the

petitioners can be said to be the persons with benchmark

disability, in that, they neither suffer from permanent

disablement nor their disability certified by the Medical

Authority is a long-term disability so as to qualify the

petitioners to be the persons with benchmark disability.

WP(C) No.2530/2024 Page 15 of 15

22) For the foregoing reasons, we find no merit in this

petition and the same is, accordingly, dismissed.

(RAJESH SEKHRI) (SANJEEV KUMAR)

JUDGE JUDGE

Srinagar,

17.12.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes