Judgment :- 1. Is the action of the State Government in not making any reservation for the handicapped persons for admission to the Post Graduate Courses in Medicine, Surgery etc. violative of S.39 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995? This is the short question that arises for consideration in this set of three cases. Learned counsel for the parties have referred to the facts in W.A.No.3660 of 2001. These may be briefly noticed. 2. The appellant is physically handicapped. He was afflicted with Polio. It had left him with a handicap of 60% in the legs. Despite the handicap, the appellant had graduated in Medicine from the Calicut University in 1994. He had completed the requisite internship in November 1995. On December 5,1995 he was registered as a Medical Practitioner with the Medical Council. 3. In April 2001, the State Government published a prospectus for admission to the Post Graduate Degree/ Diploma Courses in Medical Sciences. While issuing this prospectus, reservations were made for various categories like Scheduled Castes, Scheduled Tribes, Ex-servicemen and Service candidates. However, no reservation was made for the physically handicapped persons. The appellant submitted his application form. He did not claim the benefit of any reservation. However, in June 2001, he filed a petition under Art.226 of the Constitution complaining that the State Government had failed to carry out its statutory obligation under the provisions of the 1995 Act. This action was arbitrary and violative of Art.14 of the Constitution. Thus, he prayed that a writ of mandamus be issued directing the respondents to modify the prospectus and to make a provision of "3% reservation for physically handicapped in the Medical P.G. Degree/ Diploma Courses 2001..." He further prayed that the respondents be directed to consider his application in the quota for the physically handicapped. 4. The matter was posted for hearing before a learned Single Judge. His Lordship, relying on the decision of a Division Bench in State of Kerala v. Mary Joseph (2001 (3) KLT 26) dismissed the writ petition. In Mary Joseph's case, the Bench had ruled that S.39 appeared in Chap.6 of the Act. This Chapter primarily deals with employment. Thus, the reservation for the physically handicapped had to be made only at the time of recruitment. In Mary Joseph's case, the Bench had ruled that S.39 appeared in Chap.6 of the Act. This Chapter primarily deals with employment. Thus, the reservation for the physically handicapped had to be made only at the time of recruitment. No provision for reservation was required to be made under S.39 for the purpose of admission to Government or aided educational institutions. The fact, which deserves mention here is that, this view was taken despite the fact that S.39 specifically provided for reservation in "all Government educational institutions and other educational institutions receiving aid from the Government..." However, the learned single judge was bound by the decision of the Division Bench. Resultantly, the Writ Petition was dismissed. 5. Aggrieved by the order of the learned single judge, the writ petitioner filed the appeal. When the matter was posted before a Division Bench, reference was made to the decision in Mary Joseph's case. The correctness of the view was challenged. The Division Bench, after hearing the learned counsel, felt that if the interpretation as placed in Mary Joseph's case was upheld, S.39 "would be rendered otiose and nugatory." " Thus, the Bench ordered that the matter be placed before the Chief Justice for constitution of a larger Bench. This is how the matter has been placed before this Bench. 6. Mr. Abraham Vakkanal, learned counsel for the appellant has pointed out that the Division Bench of this Court, while dealing with the issue of S.39, had decided a number of cases together. One of these was State of Kerala v. Mary Joseph (supra). The judgment of the Division Bench was challenged before the Supreme Court by one of the parties. The matter was considered by their Lordships of the Supreme Court in All Kerala Parents Association v. State of Kerala (2002 (3) KLT 423 (SC)). The Apex Court had reversed the decision of the Division Bench. Resultantly, the benefit of reservation under the Act is available for the purpose of admission to educational institutions. On this basis, the counsel submits that the relief as prayed for by the appellants and the writ petitioner in this set of three cases deserves to be granted. 7. The claim as made on behalf of the appellants/ petitioner has been controverted by the counsel for the respondents. On this basis, the counsel submits that the relief as prayed for by the appellants and the writ petitioner in this set of three cases deserves to be granted. 7. The claim as made on behalf of the appellants/ petitioner has been controverted by the counsel for the respondents. It has been submitted that in the circumstances of these cases, the action of the authority in refusing to make any reservation under S.39 is legal and valid. 8. In view of the clear language of the provision and the decision of the Supreme Court, it is not necessary to examine the matter at length. The short question that arises for consideration is - Has the State Government acted in violation of S.39 in refusing to make reservation for the handicapped persons for admission to the Post Graduate Degree/ Diploma Courses in different specialties of Medicine and Surgery? 9. Learned counsel for the appellants has given to us a copy of the prospectus issued by the Directorate of Medical Education for admission to the Courses for the year 2001. The number of seats etc. available in different specialties have been given in Annexures I and II. Annexure I gives the details of the seats available at the five - Medical Colleges in the State for Post Graduate Degree Courses. Annexure II deals with the number of seats available for the Diploma Courses at the said colleges. A perusal of the prospectus shows that the total number of seats available in all the five colleges for admission to Degree Courses is 186. Total number of seats available for Diploma Courses is 143. On this basis, it is claimed that 3% of the 329 seats viz. at least 10 seats should be allotted to the physically handicapped persons like the appellants in the specialties for which they have applied. 10. The 1995 Act was promulgated "to give effect to the Proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region." India is a signatory to this Proclamation. at least 10 seats should be allotted to the physically handicapped persons like the appellants in the specialties for which they have applied. 10. The 1995 Act was promulgated "to give effect to the Proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region." India is a signatory to this Proclamation. In the Statement of Objects and Reasons, it was inter alia pointed out that the State had responsibility "towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities." Another objective of the Act was to create "barrier free environment for persons with disabilities" and to "remove any discrimination against persons with disabilities in the sharing of development benefits vis-a-vis non-disabled persons." To achieve the declared objects of the legislation, it was inter alia provided that the Central and State Governments would constitute coordination committees. Definite functions have been assigned to these committees. In Chapter IV, provision for prevention and early detection of disability was made. In Chapter V, provision for providing opportunities for education have been made. 11. Chapter VI of the Act primarily deals with providing opportunities for employment Under S.32, the State Government has to identify posts, which can be reserved for persons with disability. S.33 provides as under: Status Approve S. 33 Reservation of posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from? (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such condition's, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 12. A perusal of the provisions in this Chapter clearly indicates that the posts in different services have to be identified. The object is to determine the categories of posts against which persons with different kinds of disability may be considered for appointment. A perusal of the provisions in this Chapter clearly indicates that the posts in different services have to be identified. The object is to determine the categories of posts against which persons with different kinds of disability may be considered for appointment. Still further, on a perusal of S.33 it is clear that reservation at the rate of 1 % each has to be made for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. Such persons have to be appointed against the posts identified for each disability. In the proviso, a provision for the grant of exemption has been made. An establishment can be excluded from the provisions of the Section. In other words, the Government is under a duty to identify the categories of posts against which persons with different disabilities can be appointed. In the case of departments where appointment of disabled persons is difficult, the Government has the power to grant an exemption. To illustrate: the Government can reserve posts of teachers in music for persons who are blind. Similarly, clerical jobs may be reserved for persons suffering from impairment of hearing or locomotor disability. Equally, it is open to the Government to say that engineering and certain parts of medical establishments shall be exempt from the operation of the provision regarding reservation. The reason for this appears to be that a person who is physically handicapped may not be able to stand and supervise the construction of buildings, installation of machinery. or the working of plants. Equally, a doctor who is handicapped may not be in a position to physically stand and perform surgery for long hours. 13. Counsel for the parties have not pointed out anything from the records as to whether or not the Government has identified posts and services against Which the physically handicapped persons can be appointed. This exercise is essential. If the needful has not be done, the matter should be considered without delay. However, as at present, the short question that arises is - Can the Government be compelled to make reservation of not less than 3% seats in postgraduate degree and diploma medical courses? 14. In S.39 a provision for reservation of seats in educational institutions for the handicapped has been made. The provision reads as under: "S. 39. All educational institutions to reserve seats for persons with disabilities:? 14. In S.39 a provision for reservation of seats in educational institutions for the handicapped has been made. The provision reads as under: "S. 39. All educational institutions to reserve seats for persons with disabilities:? A11 Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities." 15. A perusal of the above provision shows that reservation of 'not less than 3%' has to be made in'all educational institutions.' However, the provision does not stipulate that the seats in all the educational institutions located at different places in the State have to be pooled together. Why? It appears that the reservation was intended to be institution-wise. The Parliament was aware of the fact that persons with physical handicaps may not be able to stay away from the normal places of their residence. Some of them may not be able to look after themselves fully. Thus, no provision for combining the seats together was made. 16. The question that arises is - Does S.39 lay down an inflexible rule that a minimum of 3% of the seats in all educational institutions shall be reserved for the physically handicapped persons? Why did the Parliament include S.39 in Chapter VI, which primarily relates to employment? 17. It is true that the provision requires the Government to reserve not less than 3% seats in all educational institutions except those, which are not receiving any aid from it. We are clearly of the view that despite the language of the provision the Government has a discretion in the matter. To illustrate: The Government may be running an institute for training drivers. The disabled persons like those who have the handicap of eyesight shall not be able to work as drivers. Similarly, the Government may be running an institute for providing training in sports. The persons with physical disabilities shall not be in a position to serve as Coaches at the end of the training. Such instances can be multiplied. In all these cases, it may not be useful or even desirable to make reservation. In other words, the Government should have the same discretion in making reservations in educational institutions as it has in the matter of identifying jobs. This would avoid wastage of effort and expense. Such instances can be multiplied. In all these cases, it may not be useful or even desirable to make reservation. In other words, the Government should have the same discretion in making reservations in educational institutions as it has in the matter of identifying jobs. This would avoid wastage of effort and expense. Thus, despite the language of the provision, we are of the view that the Government has a discretion in the matter of reserving seats in the educational institutions, in the same manner as it has in case of identification of services and posts. 18. It is in this background that the issue as arising in this case has to be answered. 19. A brief reference to the facts is necessary. A perusal of the prospectus shows that the Postgraduate Degree Courses are provided in 22 different Specialties. Similarly, even the Diploma Courses are in different disciplines. Thus, the number of seats available for each Specialty is different. It varies from 2 to 32 for the Degree Courses. However, the maximum number of seats are available in General Surgery. Out of these 32,15 are available at the Trivandrum Medical College, 7 at Kottayam Medical College, 9 at Kozhikode Medical College and 1 at Alleppey Medical College. The question that arises is - Can the Government be still compelled to make reservation of at least 3% seats? 20. The difficulties are - (i) the number of seats in each Specialty at each of the Colleges is small; (ii) on account of the physical handicap the appellants/ petitioner are not in a position to seek admission to the Specialties like General Surgery etc. To illustrate, it may be mentioned that the appellant in the appeal in hand has a handicap of 60% on account of Polio. Both his legs are badly affected. As a result, it is not possible. for him to stand and perform surgery. For this reason, he has not even applied for this Specialty. Still further, it is also clear that it would be very difficult for a person who is totally blind or deaf to study