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2001 DIGILAW 309 (PAT)

Anant Kumar v. State Of Bihar

2001-04-04

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. In this writ petition the petitioner has raised an issue of far reaching importance relating to implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1/96) (hereinafter called "the Disability Act") in the matter of admission in educational institutions in the State of Bihar. In particular, he seeks direction for his admission in the B.A. (Hons) Part I course in 2000-2003 session in Patna College, Patna in the disabled category. 2. The case of the petitioner is that he is a disabled person having more than 60 per cent disability as certified by the Medical Board, Vocational Rehabilitation Centre for handicapped, an authority of the Government of India, Ministry of Labour. He has also good academic record having passed the Matriculation examination with 74 per cent marks and the Intermediate examination with 68.3 per cent marks. He applied for admission in B.A. (Hons) Part I course in Patna College pursuant to advertisement issued by the College on 14.9.2000. On account of the strike which continued for a long period the list ot selected candidates was notified only on 12.12.2000. The name of the petitioner was not there. He made enquiry from the College authorities and came to learn that list of disabled candidates would be notified separately later as Medical Board was to be constituted to ascertain the disability and the process was on. Subsequently on 10.1.2001 a notice was published on the notice board of the College asking the disabled candidates to appear before the Chief Medical Officer, Patna University at the Centra! Dispensary of the University for their physical examination. The petitioner along with other candidates appeared and was found to be physically handicapped. Thereafter on 18.1.2001 list of disabled candidates was notified. The list mentioned the names of only two candidates. Meanwhile the petitioner had served legal notice on the Principal, Patna College, with a copy to the Vice- Chancellor, Patna University, giving reference inter alia to the provisions of Section 39 of the Disabilities Act and the obligation of the University/College to admit adequate number of disabled candidates in the disabled category under the Act. Meanwhile the petitioner had served legal notice on the Principal, Patna College, with a copy to the Vice- Chancellor, Patna University, giving reference inter alia to the provisions of Section 39 of the Disabilities Act and the obligation of the University/College to admit adequate number of disabled candidates in the disabled category under the Act. It was pointed out that total number of seats in B.A. (Hons) Part I course in the college being 400, in terms of the provisions of the Act, at least 12 seats were required to be reserved for the disabled candidates. However despite pointing out the provisions of the Disabilities Act and the obligation of the authorities to follow them, only two disabled candidates were notified for admission on 18.1.2001. On 5.2.2001 the petitioners lawyer received reply from the Principal of the College stating that till date the College had not received any communication from the University regarding reserving 3 per cent seats for the disabled candidates in admission in different courses. The Principal however stated in his letter that position of the petitioner in the merit list in the disabled category was eighth. According to the petitioner, since at least 12 seats were/are required to be reserved for the disabled candidates, there being no dispute about his disability within the meaning of the Disabilities Act, he is entitled to direction upon the concerned authorities to admit him against one of the 12 seats in the college/course. 3. In its counter affidavit sworn by the Registrar, the Patna University has referred to Clause 8 of the General Ordinance for Admission to the various Courses of Studies dated 28.8.99 conferring power on the Chancellor "to relax any criteria and increase seats beyond the usual number of seats by 1 % each with the approval of the Chancellor in the case of students suffering from (i) low vision, (ii) hearing impairment and (iii) Locomotor disability or cerebral palsy. The affidavit categorically states that the Patna University has so far not incorporated any part of the Disabilities Act in the said General Ordinance for Admission dated 28.8.99. 4. The State of Bihar has also filed counter affidavit sworn by the Joint Secretary, Higher Education Department, stating that by Resolution No. 251 dated 18.10.2000 the State Government has already decided to provide reservation upto 3 per cent in appointment to government service. 4. The State of Bihar has also filed counter affidavit sworn by the Joint Secretary, Higher Education Department, stating that by Resolution No. 251 dated 18.10.2000 the State Government has already decided to provide reservation upto 3 per cent in appointment to government service. So far as admission is concerned Section 61 of the Bihar State Universities Act, 1976 and the corresponding Section 58 of the Patna University Act, 1976 contain provisions for reservation for candidates of Scheduled Castes to the extent of 14 per cent, Scheduled Tribes to the extent of 10 per cent, Extremely Backward class to the extent of 14 per cent, Backward Class to the extent of 10 per cent and Women of Backward Class to the extent of 2 per cent i.e. 50 per cent in all, However the government has already initiated steps to provide reservation to the disabled/handicapped candidates in admission on the same line as in the matter of appointment under Resolution No. 251 dated 8.10.2000 (supra) but this requires amendment in the relevant sections of the University Acts for which some formalities have to be observed which is likely to take about four months time. It is thus submitted that the grievance of the petitioner is likely to be redressed shortly. It has further been stated in the States counter affidavit that the reserva- tion for disabled/handicapped candidates will be within the quota already provided to the particular category i.e. scheduled castes, scheduled tribes etc. categories and they will be allowed the benefit of reservation within the quota meant for the particular category to which they belong, as provided in Section 61/58 of the State Universities Act/ Patna University Act. 5. Considering the significance of the issue involved this Court by order dated 19.2.2001 issued notice to the Chancellor of the Universities. It may be pointed out that any direction to implement the provisions of Disabilities Act would con- cern not only the Patna University but other Universities as well and the Chan- cellor being the fountain-head of all the Universities it was considered necessary to ascertain his views. The Chancellor has since filed a counter affidavit sworn by the Deputy Secretary. It may be pointed out that any direction to implement the provisions of Disabilities Act would con- cern not only the Patna University but other Universities as well and the Chan- cellor being the fountain-head of all the Universities it was considered necessary to ascertain his views. The Chancellor has since filed a counter affidavit sworn by the Deputy Secretary. The affidavit states that the Chancellor having regard to the provisions of the Act and the ob- jects to be achieved, is of the firm view that the State Government should as soon as possible constitute a State Co-or- dination Committee under Section 13 of the Act and further constitute State Ex- ecutive Committee under Section 19 of the Act so that the objects can be fully achieved. The obligation of the State Government in the light of the provisions of Sections 26 and 27 has been high-lighted and it has been stated that in order to give full effect to the Disabilities Act and to achieve the objects, the State Government is required to prepare a comprehensive educational scheme, and in particular, as soon as possible, make provisions for : (a) Constituting an appropriate forum for redressal of the grievance of the parents regarding placement of their children with disabilities; (b) Making suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low vision; and (c) Restructuring the curriculum for the benefit of students with hearing impairment. Further, the State Government is also required to formulate schemes and provide funds by law or by executive order for all educational institutions. 6. Coming to the issue of reservation of seats in the educational institutions at degree and masters level including those imparting technical education, it has been stated that unless the basic facilities are made available at the level of primary, secondary and intermediate education, reserving seats at the University level with which alone the Chancellor is concerned, may be futile because the disabled students within the meaning of the Disability Act may not be available to receive education at the degree/masters level or in technical institutions. Nonetheless, it has been stated for persons suffering from the disabilities of leprosy cured and locomoter disability the Chancellor proposes to issue direction to reserve 1 per cent seat. Nonetheless, it has been stated for persons suffering from the disabilities of leprosy cured and locomoter disability the Chancellor proposes to issue direction to reserve 1 per cent seat. Further 1 per cent seat is proposed to be reserved for persons suffering from low vision and hearing impairment. It may be mentioned here that in the affidavit, para 13 also refers to mental retardation as a disability for which 1 per cent seat is proposed to be reserved along with low vision and hearing impariment but in course of hearing Shri Ram Balak Mahto appearing for the Chancellor stated that it was a clerical mistake, and in the opinion of the Chanceilor mental retardation is a type of disability which does not justify giving the person concerned any benefit of reservation in admission in educational institutions. 7. From the stand of the respondents, including the Chancellor, the following position emerges. There is no reservation for the disabled candidates within the meaning of the Disability Act in the Universities as of date. The ViceChancellor of the Patna University has power to "relax" the laid down criteria and increase the seats beyond the sanctioned seats by 1 % with the approval of the Chancellor in the case of candidates suffering from low vision or hearing impairment or locomoter disability or cerebral palsy but conferring the power to relax the criteria and increasing number of seats is quite different from reserving the seat for candidates suffering from the disabilities. Even that power to relax and increase the number of seats is limited to i per cent of the total number of sanctioned seats. As a matter of fact, as noted above, there is clear averment in para 3 of the affidavit of Patna University that the University has not incorporated any part of the Disability Act in the General Ordinance for Admission to the Various Course of Studies in the University. 8. The Chancellor no doubt seems to have realised though belatedly, the importance, in fact, the obligation to implement the Disability Act, and virtually an undertaking has been given to reserve 2 per cent seats1 per cent for leprosy cured and locomoter disability and the other 1 per cent for those suffering from low vision and hearing impairment, but the undertaking clearly falls short of requirement of law to reserve "at least" 3 per cent seats. Besides making reservation for the candidates suffering from leprosy cured and locomoter disability or low vision and hearing impairment treating them as two separate categories also does not seem to be in accordance with the provisions of Disability Act. I shall advert to this aspect later again in this judgment. 9. The State Government also does not deny the fact that the Disability Act has not been implemented in the State of Bihar and that there is no choice but to implement the same. The only point made out in the affidavit is that the disabled candidates have to be admitted against the seats already reserved for the candidates of the reserve categories to which they belong, that is to say, within the reservation already provided to the schedule caste, scheduled tribes, backward class etc. Thus a disabled SC candidates will be admitted against the seats reserved for the Scheduled Caste category, a disabled ST candidate will be admitted against a seat meant for Scheduled Tribe category and so on. But making such reservation requires amendment in the two University Acts namely the State Universities Act and the Patna University Act in Sections 61 and 58 respectively thereof. Steps are afoot to bring about suitable legislation on the same lines on which reservation has been provided to the reserved category candidates in the matter of employment under Resolution no. 251 dated 18.10.2000 up to 3 per cent. 10. At this stage it would be useful to notice some of the provisions of the ability Act as under: "The term person with disability has been defined under Section 2{t) of the Act to mean "a person suffering from not less than forty per cent of any disability as certified by a medical authority". Term disability has been defined under Section 2(i) to mean "(i) blindness; (ii) low vision, (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness". These terms have been separately defined in different clauses of the definition Section i.e. Section 2. For the purpose of this case it is not necessary to notice their definitions. Chapter II of the Act provides for constitution of Co-ordination Committee by the Centra! Government while Chapter III provides for constitution of State Co-ordination Committee and State Executive Committee by the State Government. Chapter IV contains provisions relating to prevention etc. of disabilities. For the purpose of this case it is not necessary to notice their definitions. Chapter II of the Act provides for constitution of Co-ordination Committee by the Centra! Government while Chapter III provides for constitution of State Co-ordination Committee and State Executive Committee by the State Government. Chapter IV contains provisions relating to prevention etc. of disabilities. Chapter V deals with education while Chapter VI deals with employment. It is not necessary to refer to the rest of the Act. 11. The provision which deserves special and pointed attention is the one contained in Section 39 of the Act. Section 39, in fact, if I may say so, is the soul of the Disability Act without which the Act would be incomplete and falling short of achieving the desired objectives. The con- dition of persons with disability cannot be improved without making provisions for their education. Without education they cannot secure employment, join the mainstream of the society and make themselves useful. In fact, then alone they can make their life and the very ex- istence meaningful. Section 39 reads as under : "All Government educational institutions and other educational institutions receiving aid from the DisGovernment, shall reserve not less than three per cent seats for persons with disabiiitieis." There cannot be any dispute, nor there is any, that the legislative mandate contained in the above provision, which could not be couched in more clear words, obliges all Government educational institutions or other educational institutions receiving aid from the Government to reserve seats for the persons with disabilities and such reservation must be of at least 3 per cent seats. In this view of the matter, the stand of the Chancellor thai he proposes to issue direction to reserve 2 per cent seats for candidates possessing certain types of disability cannot be said to be in accordance with the Disability Act. Besides, the categorisation of the disabilities and making separate reservation for candidates with those disabilities as proposed by the Chancellor, also does not seem to be in accordance with law. But before I deal with that aspect, I would like to refer to the preamble to the Act. Besides, the categorisation of the disabilities and making separate reservation for candidates with those disabilities as proposed by the Chancellor, also does not seem to be in accordance with law. But before I deal with that aspect, I would like to refer to the preamble to the Act. Though the preamble strictly speaking is not part of the Act, at the same time it may be looked into in order to understand the aims and objects for which the Act is enacted as an aid to interpretation of provisions of the Act. The preamble refers to the Proclamation on the Full Participation and Equality of the Peopie with Disabilities by Economic and Social Commission for Asia and Pacific Region in its meeting held in December 1992. It states : "AND WHEREAS India is a signatory to the said proclamation; - AND WHEREAS it is considered necessary to implement the proclamation aforesaid. Be it enacted by Parliament in the Forty-sixth year of the Republic of India....." 12. Shri Ram Balak Mahto, learned counsei for the Chancellor, pointed out that Disability Act has been enacted in exercise of legislative power conferred upon the Parliament under Article 253 of the Constitution which lays down, "Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body". In this connection submission of the counsei for the State was that the Act has been enacted under the general legislative power conferred on the Parliament under Article 245 and not under Article 253. He referred to entries 13 and 14 of List I of the Seventh Schedule to the Constitution. The submission of the State counsel, in my opinion, is beside the point and it is unnecessary to go into the same. I would nonetheless observe that the legislative power of the Parliament is not in dispute and so far as exercise of power is concerned, when special provision has been made conferring power on the Parliament to make law for implementing any treaty, agreement or convention or decision at any international conference etc. The enactment would fall under Article 253 of the Constitution. The enactment would fall under Article 253 of the Constitution. The preamble specifically mentions that Act was being enacted to implement the proclamation i.e. the decision arrived at an international conference. So far as entries 13 and 14 of List I are concerned they merely empower the Union to participate in international conference and implement the decision made there, and enter into treaty and agreement with foreign countries and implement such treaties and agreements respectively. 13. While making general observations reference may also be made to Directive Principles of State Poiicy in Part I of the Constitution, particularly Article 41 which lays down : "The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases for undeserved want." (emphasis added) Shri Ram Balak Mahto, rightly, if I may say, submitted that what was earlier envisaged as object of State Policy has not been converted into an obligation of the State. By virtue of the provisions of Article 41 the State was supposed to frame its policy for securing right to education, amongst other things, to persons with disability. A duty is now cast on it under the Disability Act to reserve at least 3 per cent seats for the candidates with disabilities. 14. Now adverting to the stand of the Chancellor, as already observed above, the proposed reservation of 1% of the seats for Leprosy Cured and Locomoter Disability and another 1% of the seats for low Vision and Hearing Impairment treating them as two separate categories, is not in accordance with law. It is true that all types of disabilities falling within the definition under Section 2(t) of the Act may not qualify for the benefit of reservation in the matter of admission at the degree/masters level; for example, persons suffering from mental retardation or mental iilness i.e. lunacy for whom different kinds of facilities are needed, as envisaged in the Disability Act itself, and they thus may not be said to be fit persons to claim benefit of reservation in the matter of education, there can be no justification to treat the disabilities with respect to which the Chancellor proposes to provide for reservation in separate categories. As all types of disabilities have been mentioned together as one category, I am of the view that the proposed reservation has to be made with respect to them without making any categorisation. In other words, 3% seats to be reserved for them may be filled by persons suffering from Low Vision or Leprosy Cured or Hearing Impairment or Locomoter Disability as the case may be. Where the number of candidates is more than the number of reserved seats selection may be made on the basis of marks. In any view, the proposed reservation to the extent of 2% seats would clearly be short of the requirement. To this extent the affidavit of the Chancellor is rejected. He should make suitable modification in the proposed regulation for implementing the provisions of the Disability Act in the light of foregoing observations. 15. The stand of the State that reservation of seats for the disabled person can be only against the quota of seats reserved for particular category of reservation is approved. The stand seems to be in accordance with the decision of the Supreme Court in Indra Sawhney V/s. Union of India & ors, AIR 1996 SC 477. The passage occurring at page 566 of the report as under would bring home the point : "A little clarification is in order at this juncture : all reservations are not of the same nature. There are two types of reservations which may, for the sake of convenience, be referred to as vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped {under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservationswhat is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure." 16. This is however only one aspect of the matter. As submitted by Shri Ram Balak Mahto, the Disability Act cannot be fully implemented and the fruits thereof cannot be enjoyed by the disabled persons unless the State Co-ordination Committee and the State Executive Committee under Sections 18 and 19 of the Act are constituted. The State Co-ordination Committee is supposed to review and co-ordinate the activities of all the Departments of the Government and other Governmental and non-Governmental Organisations dealing with the matters relating to disabled persons develop State policy with respect to disabled persons, advise the State Government on formulation of policies, programmes, legislation and projects with respect to persons with disabilities, take steps to ensure barrier free environment in public places, work places, public utilities, schools and other institutions and so on. The decision of the State Co-ordination Committee is to be carried out by the State Executive Committee. Simply making reservation in the matter of admission or employment without providing coincidental facilities to the persons suffering from disabilities, in my opinion, will not serve theobject of reserving seats or posts in the matter of admission or employment as the case may be. From the decision in Javed Abidi V/s. Union of India & ors., AIR 1999 SC 512 , it appears that the Court in view of the grievance of the petitioner that neither Central Government nor the State Government had constituted Central Coordination Committee and the State Coordination Committees, issued notice to all the State Government and the Union Territories. From the affidavits filed by them the Court found that Central Co-ordination Committee as well as the State Co-ordination Committees had been constituted in "most of the States". Perhaps, Bihar was one of the State in which the Committee had not been constituted. From the affidavits filed by them the Court found that Central Co-ordination Committee as well as the State Co-ordination Committees had been constituted in "most of the States". Perhaps, Bihar was one of the State in which the Committee had not been constituted. In any case, no such statement has been made in the counter affidavit of the State. I would be failing in my duty if I do not take this opportunity to direct the State Government to immediately take necessary steps for constitution of the State Co-ordination Committee as well as State Executive Committee, provide necessary infrastructure to them .and make them functional in true sense. The State will also take necessary steps to bring about necessary amendments in Section 61 of the Bihar State Universities Act and Section 58 of the Patna Universities Act incorporating provisions regarding reservation for the persons with disabilities. 17. Having thus made general observation and given direction regarding implementation of the Disability Act, what remains to consider is the case of the petitioner. From the letter of the Principal, Patna College, dated 5.2.2001 enclosed as Annexure 6 to the writ petition, it appears that though disability of the petitioner entitles him to admission in the disabled category, he is placed at serial no. 8 in the merit list on the basis of marks. 12 candidates in all had applied for admission in that category. There being no dispute about the total number of seats in B.A. (Hons.) Part I course being 400, had 3% seats been reserved for the disabled candidates, the petitioner in the ordinary course would have been admitted. Considering that the proposed amendments in the Patna University Act or the State Universities Act may take time, and the proposed directive of the Chancellor (after necessary modifications as suggested above) to the Universities to make regulations may also take time, it would not be fair to keep admission of the petitioner pending. Though other disabled candidates who had applied along with the petitioner for admission have not approached this Court I do not think it would be proper to deny them the benefit of this order considering that some of them were placed above the petitioner in the merit list. Though other disabled candidates who had applied along with the petitioner for admission have not approached this Court I do not think it would be proper to deny them the benefit of this order considering that some of them were placed above the petitioner in the merit list. I would accordingly direct the respondents, particularly, the Vice Chancellor, Patna University and the Principal, Patna college to consider the cases of the petitioner and other disabled candidates who had applied for admission pursuant to notice dated 10.1.2001 and in respect to whom the list was notified on 18.1.2001, afresh for their admission in the B.A. (Hons.) Part I course in anticipation of the amendments in the Universities Act and the regulations to be framed pursuant to the directive of the Chancellor. This should be done within two weeks. In order to remove any doubt I would clarify that the petitioner and other willing disabled candidates shall be admitted notwithstanding that the total number of sanctioned seats might have already been filled and further, their admission will be in the particular category to which they belong i.e. SC/ST/Backward Class category etc. or un-reserved category, as the case may be. 18. In the result, this writ petition is allowed with the observations and directions mentioned above. There will be no order as to costs.