Allahabad High Court
Anoop Kumar Niranjan Son Of Sri Siya Ram ... vs State Of U.P. Through The Principal ... on 14 August, 2007
Equivalent citations: 2008(2)AWC1744
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Shri R.C. Maurya, learned Counsel for petitioner and Shri Mahendra Pratap for respondent Nos. 2 and 3. Learned standing counsel appears for State respondent.
2. The parties have exchanged affidavits. With their consent the write petition was heard, and is decided at the admission stage.
3. The petitioner belongs to Other Backward class (Kurmi) (OBC) category and is a physically challenged person since childhood. He suffers from physical disability in the lower limbs assessed between 50-70% and falls in the category of the physically disabled person'. The petitioner passed High School Examination-1996 in first division from Secondary Education Board; the Intermediate Examination-1999 in first division and was thereafter admitted to Bachelor of Dental Surgeon (BDS) Degree Course in UP King George's University of Dental Sciences Lucknow in the year 2001 and has passed final examination on 29.3.2006. The Special Medical Board constituted by the Director, Medical and Health, UP has certified him to be physically disabled person, entitled to pursue medical studies. He is new seeking admission to M.D.S. Course.
4. By a Government Order dated 13.9.2006, Lala Lajpat Rai Memorial Medical College, Meerut was appointed as the Coordinator for conducting 'UP Post Graduate Medical Entrance Examination 2007' (UPPGMEE-2007). The brochure published by the University provided for the procedure of entrance examination. The written test was held on 4.2.2007. The petitioner appeared in the entrance examination with Roll No. 20472 and secured general category rank (147), OBC category (29), and OBC physically handicapped category rank (1). He prepared a bank draft of Rs. 2500/- in the favour of Director General, Medical Education and Training, U.P. for counselling on 6.4.2007.The petitioner was enrolled in the counselling on 5.4.2007 by depositing Rs. 200/-. He was present throughout the day of counselling on 6.4.2007 but was not called by the Committee. It is only when the entire counselling session was over, that the counseling Committee orally informed him that since there are only 12 seats in MDS in King George's University, Which is only college offering MDS course, there is no seat reserved or available for him in the category of OBC belonging to Physically disabled person aggrieved the Petitioner has filed this writ petition.
5. Shri R.C. Maurya, learned Counsel for petitioner submits that 3% of the total 351 PG seats will be 10.53 seats i.e. 11 seats and not 9 seats. In case 351 seats in MD/MS Diploma holder and 12 seats for MDS are clubbed together, then there will be a total of 366 available seats and that the last seat will fall to the category of physically handicapped on the roster point. Thus total 11 seats had to be provided to the physically disabled persons. The respondents have acted illegally in allotting only 9 seats to the physically disabled persons. In the alternative he submits that even if K.G. Dental Sciences University is treated as a separate unit, the respondents were required to allot at least one seat in every three years to physically disabled persons and that after 1995 no seat was allotted to physically disabled person. This year at least one seat ought to be allotted to the physically disabled person. By the Government Order dated 29.9.2006 the reservation has to be applied by clubbing the total seats of post graduate courses in Government Medical Colleges, King Georges Medical University and King Georges Dental Sciences University. In substance Shri Maurya submits that, the MDS course should not be separated artificially for applying reservation to the available seats and that clubbing 12 seats of MDS course to 351 seats. 3% reservation will come to 11 and not 9 seats and further with the enforcement of (The) Persons with Disabilities (equal Opportunities, Protection of Rights & Full Participation) Act 1995 (In short the Disabilities Act, 1995) (Act No. 1 of 1996) the seats should be allowed to physically disabled candidates by clubbing the seat on yearly basis He submits that the failure to apply reservation every year will virtually deprive the physically disabled candidates from horizontal reservation for ever.
6. The respondent-University, which conducted the UP Post Graduate Medical Entrance Examination and carried out the counselling, has relied upon Government Order dated 29.9.2006 providing for the manner in which the 3% reservation for disabled persons has to be achieved in the selections. The Government Order provides for 3% reservation to disabled persons, who are suffering from locomotor disabilities in terms of the MCI guidelines and the Disabilities Act 1995. The reservation is to be horizontal as provided in the case of Combined Pre Medical Test. Thereafter the Government Order provides for identifying the seats for such-reservation as follows:
(1) The reservations of candidates are made in the Government Medical Colleges/K.G. Medical University and K.G. Dental Science University in the state in the post graduate courses in accordance with the Government Order No. 2900/Section 14/Five-96-100/96 dated 9.7.1996. According to this Government Order after the seats are identified in accordance with applicability of roster for unreserved, scheduled caste/tribe and other backward classes in each category of these seats. According to the government order every 33 rd seat will be identified for the physically disabled candidate with locomotor disorder and in this manner the candidates in the category of disability will be allotted such identified seats for disabled persons through counselling. If any seat of the physically disabled category remains vacant it shall be added in the concerned category in the second counselling.
(2) For the eligibility of the candidates in the disabled category a special medical board will be constituted by the Director General Medical and Health in any Government medical college, before which the candidate of the disabled category will appear and obtain locomotor disorder disability certificate in accordance with specified guidelines of the MCI and such candidates will get benefit only after obtaining such disability certificate. No other certificate by any officer will be admissible. The same arrangement is applicable in CPMT Examinations.
(Translated for Hindi).
7. In the counter affidavit of Dr. M.K. Kesri, Lecturer, Department of Pharmacy, Lala Lajpat Rai Medical College, Meerut, it is further stated in para-8 as follows:
8. ...It is submitted that 3% of total seats of MD/MS/Diploma/MDS as horizontal reservation were provided to the physically handicapped (locomotive disorders) by the G.O. No. 3854(1)/71-3-76 dated 29.9.2006. In compliance of above G.O. Dated 29.9.2006, 351 total seats were available for MD/MS/Diploma courses. Out of these 351 seats, 3% of total seats (9 seats) were identified as per procedure laid down in Clause 2 of G.O. Dated 29.9.2006, in which 5 seats in General category physically handicapped, 2 OBC physically handicapped, 2 SC physically handicapped, and no seat for ST. As such no seat was identified for physically handicapped out of 12 seats of MDS as per G.O. Dated 29.9.2006.It is submitted that when the petitioner appear before the Counselling Board on 6.4.2007 he was informed accordingly.
8. In paragraph-9 it is stated that the G.O. No. 3854(1)/71-3-06 dated 29.9.2006 laid down the procedure for identification of postgraduate MD/MS/Diploma or MDS courses for physically handicapped quota in which every 33rd seat will be identified for physically handicapped quota after imposing roster as per rules. Five seats in general category, two in other backward classes category in scheduled caste category of physically handicapped were identified out of total 351 seats available for MD/MS/Diploma courses. However out of 12 MD seats no seat comes in identification for physically handicapped, candidates in general category/OBC category/SC category/ST category. Out of 12 MDS seat six seats were reserved for general category, four for OBC and two were reserved for scheduled caste category after imposing roster on total 12 seats. Hence, it was impossible to identify one seat for physically handicapped in OBC category while there are only four seats for OBC category in the year 2007.
9. The law with regard to reservation for physically challenged persons for admissions in Universities and Medical Colleges is fairly well settled. In Indira Sawhney v. Union of India , it was held that the provisions of minimum 3% reservation for disabled persons is not additional in nature and will not, in any manner, be in conflict with the settled rule of 50% reservation. The reservation for disabled personsis in accordance with the principle of interlocking vertical and horizontal reservation. To illustrate suppose 3% seats are reserved for candidates with disabilities, the candidates selected against these reserved seats will be placed against respective categories, i.e., if he belongs to scheduled caste category, he will be placed in that quota and adjusted against that category. Similarly if a candidate with disabilities belonging to general category, he will be adjusted against general category Thus students, who are granted admissions in the category of the physical disabled, should be adjusted against their respective categories i.e. by horizontal interlocking. The horizontal reservation does not affect the percentage of reservation in favour of the candidate of categories of SC/ST etc.
10. In All Kerela Parents Association (of) the Hearing Impaired v. State of Kerela Civil Appeal No. 6120 of 2001 the Supreme Court of India by its Judgment dated 11.9.2002 overruled the Judgment of Kerela High Court and held that the language of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and participation) Act 1995 (in short the Disabilities Act, 1995) clearly indicate that it refers to reservation for admission, as where the language of any statutory supervision is clear and unambiguous, it is not necessary to look for extrinsic aids. The fact, the Section 39 falls under chapter of 'Employment' is of no consequence. The 'word' should be given through ordinary and popular meaning and seat cannot be interpreted as 'post' then the intent and meaning is clear. It was further noted that Section 33 already deals with reservation on Government post which includes Government and Government aided educational institutions. Section 39 of the Disabilities Act 1995 provides:
39. All educational institutions to reserved seats for persons with disabilities - All Government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than 3% scats for persons with disabilities.
11. In Dr. Raman Khanna and Ors. v. University of Delhi the Delhi High Court, after referring the Medical Council of India's guidelines reserving only 1% seats for persons with 50-70% locomotor disability disentitling hearing impaired person in the field of medical practitioners, held that MCI guidelines are in contravention of Section 39 of the Disabilities Act 1995. The Delhi High Court held that minimum 3% seats must be reserved to be distributed amongst any or all of the three sub categories as the case may be. It was further held that the though he Government of India, Ministry of Welfare is empowered under Rule 3 of the Rules framed in 1996 under the Disabilities Act 1995 in insisting that the candidates should appear before the medical board, any further condition, which amount to public restriction on such a reservation, would be violative of Disabilities Act, 1995.
12. In Education Department, Government of Tamilnadu v. Master J. Raj kumar W.A No.595 of 2003 the Division bench of Madras High Court, by its judgment dated 30.4.2003 uphold the Judgment of Single Judge under Section 39 of the Disabilities Act in holding that Section 39 of Disabilities Act is mandatory, disapproving earmarking of only 3 seats out of sanctioned seats of 1255 and held that 39 seats confirming to 3% reservation for the disabled should be provided in the MBBS Course for the academic year 2002-03. The Madras High Court relied upon the Judgment in Javed Abidi v. Union of India 1999 1 SCC 467 in which it was held that Section 39 of the Disabilities Act, 1995 is mandatory and not directory.
13. The reservation for eligible physically disabled persons at 3% on the interlocking vertical and horizontal basis is applicable to post graduate courses in Government Medical Colleges/K.G. Medical College and K.G. Dental Science University. The petitioner is a disabled person with 50-70% disability in the lower limbs certified by the notified medical board vide certificate dated 15.11.2006 (Anncxure-2). The petitioner belongs to OBC class vide a valid certificate dated 7.11.2004 (Annexure-1). He is as such eligible and is entitled to reservation for physically disabled in OBC category in which he was placed in UPPG-MEE-2007 at serial No. 1. The information Brochure of MD/MS/MDS/Postgraduate Diploma' open, with the statement that 'as per Government Uttar Pradesh Order No. 3567/71-3-06/53/06 dated 13.9.2006 Lala Lajpat Rai Memorial Medical College shall be conducting UP Post Graduate Entrance Examination 2007 to select the candidates for admission to the state quota seats of Post Graduate MD/MS/M.D.S./PG Diploma Courses in various State Allopathic Medical college and KG Medical University and KG Dental Science University'. Para 3.1 makes all candidates who have passed MBBS/BDS course from state Medical Colleges of Agra, Allahabad, Gorakhpur, Jhansi, Kanpur. Meerut, K.G. Medical College, Lucknow, K.G. Dental University Lucknow and recognised Private Medical/Dental Colleges of UP eligible to appear in the entrance examination. The distribution of seats, in Para 5.1 provides for 351 seats in MD/MS/Diploma seats and 12 for MDS in KG Dental University Lucknow. The note appended to para 5.1 of the Brochure reads as follows:
Note: 1(*) denotes unrecognized seats.
2. The number of seats in the medical colleges and allotment on these seats may change as per Govt. order.
3. Category-wise distribution of seats will be as per U.P. Public Service Scheduled Castes, Schedule Tribes and other Back ward Class Reservation amendment Ordinance, 2002.
4. 3% seats are reserved for Physically Handicapped category candidates as per norms laid down by the Medical Council of India for the same. The identification of these seats shall be as per G.O. No. 3854/71 -3-06/2006 dated 29.9.2006.
14. The UPPGME-2007 is a combined examination held in pursuance of Government Order dated 13.9.2006. The distribution of MD/MS/Diploma seats college wise in Government Medical Colleges and MDS in K.G. Dental University, Lucknow, is not to be separated for the purposes of applicability of reservations. The Government Order dated 29.9.2006 does not provide for applicability of 3% reservation to physically disabled candidate separately for MD/MS/Diploma seats and MDS in K.G. Denial university, Lucknow. In the 29 categories of MD/MS Diploma Courses in V. Government Medical Colleges, the M.D. Course is also subdivided into 6 specialities for the purposes of application/of reservation. Similarly other PG and Diploma courses are sub-divided into specialities. In these courses all the seats have to be clubbed for the purpose of applying both vertical and horizontal reservations. Keeping them artificially separate will cause imbalance and confusion depriving each category their rights and the object affirmative action visualised by the enactments and Government orders issued under the Constitution of India. The Disabilities Act 1995 provides reservations to the physically challenged persons, who are specially disadvantaged in society and need protection by way of reservation, if they are otherwise eligible for the studies or employment.
15. Shri R.C. Maurya is correct in submitting that after clubbing 351 seats of MD/MS diploma with 12 scats of MDS there will be 363 seats available on which the reservation is to be made applicable, and thus on 363 seats, 11 seats, would fall in the physically disabled category at 3% reservation as per Government Order dated 29.9.2006, which follows the MCI guidelines and Section 39 of the Disabilities Act 1995. The petitioner was placed at 1st position in the OBC-physically disabled category to be applied horizontally in the other backward class category (to he applied vertically) for the purposes of reservation. That is how the interlocking reservation works. The petitioner as such had to be allotted a seat on horizontal basis in the 95 OBC seals at 27% for OBC category out of 363 seats.
16. The chart appended to the counter affidavit shows that the University identified only four seats in PGMEE-2007 for physically disabled person. Out of 351+12 seats the University had identified the seats of M.S.(Opth.)1 at MR;,M.S. (Sur) 1 at LK; MD (Paed) 1 at AG; and; DGO 1 at AG and none in MDS causing serious and hostile discrimination to the petitioner.
17. The University erred in law in applying the reservations for disabled category candidates by firstly separating MD/MS diploma seats from MDS seats and thereafter calculating 3% seats for physically handicapped candidates only in MDS course in K.G. Dental/University, Lucknow. There was absolutely no justification for separating these seats as they were all post graduate seats to be filled up by common examination in pursuance of the Government Order dated 13.9.2006 and to which reservation was applicable for the physically disabled person by the Government Order dated 29.9.2006. There is no need to set aside the Government Order dated 29.9.2006 as the University erred only in the method of calculation of these seats. The petitioner as such is found to be entitled to one seat of MDS Course 2007. He was wrongly deprived of the counselling by the state Government. The respondents have not taken any plea that all seats in MDS Courses have been filled up or that the petitioner cannot be accommodated without disturbing some one.
18. The writ petition is allowed. A writ of mandamus is issued to the respondents to admit petitioner to MDS Course-2007 in UP King George University/Dental Sciences Lucknow in the 'OBC' physically disabled person' category. There shall be no orders as to costs.