Punjab-Haryana High Court
Tushar Garg vs Pec University Of Technology on 6 August, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.21607 OF 2011 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 06, 2012
Tushar Garg
.....Petitioner
VERSUS
PEC University of Technology, Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Gurinder Pal Singh, Advocate,
for the petitioner.
Mr. Anupam Gupta, Sr.Advocate with
Mr. Sanjay Kaushal, Sr.Standing Counsel,
for respondent Nos.1 and 2.
*****
RANJIT SINGH, J.
The petitioner is suffering from handicap of 40% permanent disability due to low vision. Despite this handicap, he has been able to pursue his education and has now faced a hurdle for his further advancement in studies.
The petitioner appeared in the competitive examination for getting admission into B.E. (Information Technology) and sought admission against the seats reserved for handicapped category candidates. In a joint admission brochure, 2011 for admission to Engineering and Architect Courses was issued by respondent-Punjab CIVIL WRIT PETITION NO.21607 OF 2011 :{ 2 }:
Engineering College University of Technology in June 2011. Three seats were reserved for physically handicapped candidates. The petitioner was admitted in B.E. (Information Technology) Course for the Ist year. He accordingly deposited his fee and was so granted admission.
Clause 2.2.3 of the brochure lays down the requirement, which a candidate seeking admission in handicap category has to fulfill. An applicant can be considered in handicap category only if minimum loss of earning capacity due to the handicap is 40%, according to the criteria laid down in the standard of E.S.I Corporation of India. All candidates seeking admission in the category of physically handicapped persons were required to submit their certificates of their permanent disability from Civil Surgeon of the District/Director/Principal or a Professor of Medical College affiliated to the University or an Institution of National importance, provided that the claimant in this category is otherwise capable to pursue the course, for which he seeks admission. The application of the candidate was to be considered only if he had attached such a certificate and those who did not attach such certificate with the application, were not to be called for counselling. This clause further provides that after provisional admission, the candidate will have to appear before the Medical Board constituted by the Principal, Medical Office, General Hospital, Sector 16, Chandigarh for determination of percentage loss of earning capacity through handicap/disability and to get a certificate to this effect. Besides other requirement, the certificate is also to indicate if the candidate is able CIVIL WRIT PETITION NO.21607 OF 2011 :{ 3 }:
to carry on the studies and perform the duties of an Engineer/Architects. Final admission was to be made on the basis of this certificate issued by the Medical Board. Those candidates who did not appear before the Medical Board on the date intimated, their candidatures against the reserved category was to be rejected.
Clause 2.2.3 of the prospectus is as under:-
"Physically Handicapped Applicants will be considered in this category only if the minimum loss of earning capacity due to handicap is forty percent, according to the criteria laid down in the standards of E.S.I. Corporation of India. All physically handicapped persons shall produce a certificate of their permanent physical disability from a Civil Surgeon of a District/Director/Principal or a Professor of a Medical College affiliated to University or an institution of national importance provided that the claimant in this category is otherwise capable to pursue the course for which the admission is sought. If this certificate is not attached with the application, the candidate will not be considered against the seats reserved for this category. The candidate will be called for the counseling on the basis of the certificate attached with the application.
After provisional admission, the candidate will have to appear before the Medical Board constituted by the Principal Medical Officer, General Hospital, Sector 16, Chandigarh, for determination of the percentage loss of CIVIL WRIT PETITION NO.21607 OF 2011 :{ 4 }:
earning capacity through handicap/disability and getting a certificate to this effect. This certificate will also indicate the name of the disease causing the handicap; whether the handicap is progressive or non-progressive; and whether the candidate is able to carry on the studies and perform the duties of an engineer/architect. The final admission will be based on this certificate issued by the Medical Board. In case any candidate does not present himself before the Medical Board on the date intimated to him, his candidature against the category will be rejected and no subsequent opportunity will be given to him. An applicant having a temporary or progressive handicap would not be considered for admission against the seats reserved for this category."
Since the petitioner was suffering from low vision to the extent of 40%, in support of which he has furnished a certificate, the petitioner was required to appear before a Medical Board in term of Clause 2.2.3 of the prospectus. The petitioner accordingly appeared before the Medical Board but came to learn that on the basis of some correspondence exchanged between the University and the Board, he was declared unfit for doing B.E. (Information Technology) Course. The copy of the certificate issued by the Board is annexed with the petition as Annexure P-3. The Medical Board has declared the petitioner unfit for doing the technical course. Otherwise, the Board found the petitioner suffering from 40% disability. The opinion of the Board making the petitioner unfit apparently has followed on CIVIL WRIT PETITION NO.21607 OF 2011 :{ 5 }:
the basis of some communication received from Dean Academic Affairs of the respondent-University through a letter No.PEC/DDA/18149, dated 7.9.2011. It appears that the Medical Board had enquired from the University, if it was having any of its own separate norms and relaxed standards pertaining to visual acquity with regarding to handicap candidates. It appears that in response to query by the Board, the University had informed the Board that the University was not having its own separate norms and relaxed standards pertaining to visual acquity with regard to handicap candidates. The petitioner is, thus, declared unfit for doing the technical course.
On the basis of this opinion, respondent-University served a show cause notice to the petitioner, asking him as to why his admission should not be cancelled due to medical unfitness. The petitioner was given seven days' notice to respond. The petitioner submitted detailed reply, copy of which is at Annexure P-5. In the reply, the petitioner has pointed out that he is a person with disability as defined under Section 2(t) of the person with disability (Equal Opportunity Protection of Rights and Full participation) Act, 1995 (for short, "the Act"). The petitioner has also referred to Section 2(i) of the Act, where disability means blindness/low vision. As per the petitioner, it is to meet the statutory requirement laid down in this Act that one seat was reserved for physically handicapped candidate at All India Quota. The petitioner had applied for this seat on the basis of certificate dated 15.12.2010 issued by Civil Surgeon, Sangrur. The petitioner had submitted himself before the Medical Board as per the CIVIL WRIT PETITION NO.21607 OF 2011 :{ 6 }:
requirement of prospectus. By placing reliance on a judgement, reproduced in the representation, the petitioner had urged that on co-joint reading of Rule 4 of the Rules, it was crystal clear that individual Universities/establishments have no alternative but to accept the certificate issued by the Medical Board constituted by the Central or the State Government.
Reference is also made to the report of Expert Committee constituted by Ministry of Social Justice and Empowerment, Government of India, which has identified the list of jobs for Group A and B posts vide notification dated 18.1.2007. The petitioner accordingly would point out that after completion of his course of Information Technology, he would become eligible to work as Programmer or as Scientist in Information Technology. For these posts, even persons having disability of one arm, one leg or both legs, hearing impairment, blind or low vision are eligible. The petitioner accordingly would plead that once this certificate about disability is given by the Medical Board, finding him suffering 40% permanent disability, the respondent-University can not deny admission to him on the ground that he is unfit to study technical course.
By referring to the conditions contained in Para 2.2.3 of the prospectus, the petitioner has urged that the Medical Board was only required to indicate whether the handicap is progressive or non- progressive and whether the candidate is able to carry out the studies and perform duties of an Engineer/Architect. The grievance of the petitioner is that without properly considering the contents of CIVIL WRIT PETITION NO.21607 OF 2011 :{ 7 }:
the reply, the respondent-University has cancelled his admission on 9.11.2011. This order is served on the petitioner on 14.11.2011. The petitioner accordingly was not left with any alternative but to file the present petition.
Respondent-University has filed short reply and has made an attempt to justify its action only on the basis of Clause 2.2.3 of the prospectus. It is stated that the petitioner was medically examined and was found unfit for pursuing the technical course. He was accordingly served with a notice and impugned order passed. Respondent-University has not chosen to file any reply to the detailed legal assertion made by the petitioner in the petition.
A separate reply has been filed on behalf of respondent No.3, through Superintendent, Government Multi-specialty Hospital, Sector 16, Chandigarh. The justification given in support of the view of the Board is that the University did not have its own separate norms and accordingly the Board had given its opinion. Though respondent-University has remained contended by filing short reply but respondent No.3 appears to have gone over-board in defending the medical certificate. Respondent No.3 has made an attempt to justify the certificate declaring the petitioner unfit for doing the engineering/architecture studies being technical in nature. This is on the basis of some note, which respondent-University was asked to clarify, reference to which is made in the certificate as well.
I have heard the counsel for the parties.
The manner in which the respondents have acted in this case would tend to nullify the effect of special law enacted for the CIVIL WRIT PETITION NO.21607 OF 2011 :{ 8 }:
benefit of persons suffering from some physical disability. The aim of this legislation is to spell out the responsibility of the State towards prevention of disabilities, protection of rights, provisions of medical care, education, training, employment and rehabilitation of the persons with disability. It is also to create barrier free environment with the persons with disability. The aim of the Act also is to remove any discrimination against person with disability, in sharing of the development benefits vis-a-vis non-disabled person. Yet another aim of this enactment is to lay down strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities and to make special provision for integration of such persons with disability into social main stream. The Act accordingly has proposed to provide for constitution of Co-ordinate Committees and Executive Committees at the Central and State levels to carry out various functions assigned to them. The Act also provides for education, employment and vocational training, reservation in identified posts, research and man power development, establishment of homes for persons with severe disability etc. The responsibility of the State, thus, under the Act is not only to prevent the disabilities but protection of rights and education, training and employment of persons with disabilities. The responsibility of the Government is to remove any discrimination between the disabled and non-disabled persons. The Act is also to provide for education and employment and this is so reflected in Chapter V of the Act. As per the Section contained under this CIVIL WRIT PETITION NO.21607 OF 2011 :{ 9 }:
Chapter, the Government is obliged to provide free education to the children with disability. The Government is also to make a programmes for non-formal education. The Government is also required to initiate or cause to be initiated research by official and non-Government agencies for the purpose of designing new assistive devices, teaching aid, special teaching materials or such other items as are necessary to give a child with disability equal opportunities in education. Not only that the Government is also to develop a trained man power for schools for children with disability. Besides, the Government is also under a statutory obligation to provide transport facility and supply of books and various other such like facilities as given in Section 30 of the Act. Thereafter, Section 31 of the Act makes a special provision, requiring educational Institutions to provide for amanuensis to students with visual handicaps. Every educational institution is duty bound to equipped itself with amanuensis for blind students or students with low vision. It can, thus, be said that the person belonging to this category are required to be treated separately and especially by the educational Institution. Educational Institutions are required to provide opportunity and amenities to make handicapped categories of candidates to equilise them with other categories of candidates. The petitioner was admitted on the basis of a certificate showing that he was suffering 40% disability, which is the minimum extent of disability laid down under the statute for him to be eligible to consider under this reserved category. In order to fulfill this mandate of the law that the petitioner was admitted in this course. Now the respondents have CIVIL WRIT PETITION NO.21607 OF 2011 :{ 10 }:
acted in a manner to nullify the statutory provision contained in the Act. The approach of the respondent-University as well as the Medical Board is certainly contrary to the spirit of the Act. It would appear to me to be a typical prejudiced attitude of Society at large against those who somehow or the other have suffered wrath of Nature. To remove this obstacle, a special legislature is enacted, which can not be permitted to be circumvented on the whims of some technicalities. The aim of the Act is to remove disabilities whereas the respondent-University appears to have acted totally contrary to the aims by creating hurdles for the petitioner to continue his studies instead of fulfilling the obligation of equipping itself with amanuensis for the petitioner, who is suffering a handicap with low vision.
Section 32 of the Act enjoins upon the appropriate Government to identify the post, which can be reserved for a person with disability. Expert Committee was accordingly appointed by the Central Government vide notification dated 18.1.2007 and number of posts were identified for persons with low vision. As pointed out above, Scientist (Information Technology) and Programmer are such posts identified for persons with low vision. The petitioner has pointed out that he was also selected for admission at Joint Entrance Examination held by IIT, Rurki and was also offered an admission in Electronic and Communication Engineering Branch at the University College, Main Campus, Patiala. He did not join the said courses because of his admission in the respondent-University. The respondents ought to realise that the petitioner, despite his handicap, has been able to compete in the entrance examination and has been CIVIL WRIT PETITION NO.21607 OF 2011 :{ 11 }:
able to get admission not in one but more than one Institution.
The petitioner would even challenge clause 2.2.3 of the prospectus being opposed to the public policy as well being contrary to the provisions of the Act. The petitioner appears justified in submitting that the Medical Board was only required to give opinion primarily qua the extent of disability and was not well equipped to opine about the fitness of the petitioner to be an Engineer/Architect. The Medical Board was apparently not made aware that certain posts have been identified for persons suffering from low vision. Had the Board been made aware of this aspect that there are posts identified for low vision candidates on the basis of B.E. (I.T.) for which the petitioner was admitted, the Board might not have expressed this opinion that the petitioner is unfit to carry out this technical study. The Medical Board did not examine the petitioner in the light of this position. Had the Board done so,it would have realised that after completing the course, the petitioner could be employed on these identified jobs. The Medical Board has apparently acted beyond its jurisdiction.
Let us see what does Clause 2.2.3 of the prospectus really requires. The requirement of this clause is to find out the minimum loss of earning capacity that a person would suffer due to handicap. It has to be 40% as per the criteria laid down in standards of E.S.I. Corporation of India. The claim of such candidates for admission is to be considered on the basis of disability certificate issued by Civil Surgeon or the other authorities referred to in this clause of the prospectus. This certificate is also to show that the CIVIL WRIT PETITION NO.21607 OF 2011 :{ 12 }:
claimant is otherwise capable of pursuing the course, for which the admission is sought. The claim of the petitioner was accordingly considered on the basis of such valid certificates attached by him with his admission form. The candidate thereafter is required to submit himself to the Medical Board constituted at General Hospital, Sector 16, Chandigarh. The purpose of this Board is to determine the percentage of loss of earning capacity. This certificate is also to indicate the name of the disease and also to indicate if the handicap is progressive or non-progressive. Thereafter, another condition is added to see if the candidate is able to carry on the studies and perform the duties of an Engineer or Architect. This part of the conditions apparently would be in conflict with the statutory provisions of the Act. The Act requires of the Institution to equip itself with amanuensis for the student with low vision but the certificate without caring to such provisions has made the petitioner unfit for doing this technical studies. What the Board was required to see was the capacity to carry on the studies and perform duties of Engineer in the light of the facilities, which the Government and the Institutions are supposed to provide. The condition as laid down in this clause of the prospectus would stand to effect the legal and statutory requirement, which can not be permitted through such executive instructions or orders.
The impugned order, directing cancellation of the admission of the petitioner is unjust, illegal and can not be sustained. If the petitioner is excluded on the ground that a person suffering from 40% low vision, would not be fit for doing this technical course, CIVIL WRIT PETITION NO.21607 OF 2011 :{ 13 }:
then the whole provision made in the Act, making special provision for person with such disability, would become redundant. It may need a notice here that to be eligible for handicapped on the ground of low vision, 40% disability is the minimum required. If with this disability, one is termed unfit to do the course, then no person with low vision will ever be able to get admission in the technical courses, for which the petitioner was admitted. By admitting the petitioner, the respondent-University has made him disable to even pursue his studies with IIT, Rurki or University College of Engineering, Main Campus, Patiala, where he had also got admission. The petitioner, thus, can not be permitted to face such prejudices.
The action in cancelling the admission of the petitioner can not be sustained and the same is accordingly set-aside.
The writ petition is allowed. However, the parties are left to bear their own costs.
August 06, 2012 (RANJIT SINGH ) khurmi JUDGE