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2006 DIGILAW 695 (PAT)

Smita Priyadarshini v. State of Bihar

2006-08-09

body2006
ORDER Heard Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioner, learned Advocate General appearing for respondent nos. 2 and 3, Bihar Combined Entrance Competitive Examination Board, Mr. Rabindra Prasad Singh, learned counsel appearing for respondent no. 5 and learned J.C. to G.P. XIV appearing for the State. 2. The petitioner has approached this court for a direction upon the responder authorities to allot her Patna Medical College & Hospital for admission in the first year M.B.B.S. course commencing from the 4th week of July, 2006. 3. The petitioner is admittedly a disabled quota candidate and entitled to allotment of a seat on disabled quota. On the basis of advertisement published in the newspaper, she applied for appearing at the Bihar Combined Entrance Competitive Examination, 2005 under the disabled quota. After the said examination was conducted, she was allotted Anugrah narain Medical College, Gaya which she joined. In response to the advertisement and prospectus of 2006-07 issued by the Bihar Combined Entrance Competitive Examination Board the petitioner again applied so that she may improve her result and get admitted to Patna Medical College. After the results were published, the petitioner got number one position in the merit list of disabled quota for general category candidates and by letter dated 7.7.2006, issued by respondent no. 3 she was called for counselling on 28.7.2006. The counselling had in fact commenced from 20.7.2006. 4. It is submitted by the learned counsel for the petitioner that the petitioner had appeared in the counselling of 28.7.2006, but found that all the seats of Patna Medical College were already filled up and seats were vacant only in Gaya Medical College. Prior to the said date, she had already filed this writ petition on 24.7.2006 stating the said facts and by order dated 26.7.2006 a direction had been issued that the authorities of Patna Medical College shall not take admission of the last general category candidate selected for admission, namely, Nitish Kumar, respondent no. 5. 5. It has also been submitted on behalf of the petitioner that during counselling she filed an application before the authorities on 28.7.2006 informing them about the pendency of this writ petition. 6. Learned counsel for the petitioner has referred to the prospectus (Annexure2), which was issued for the purpose of Combined Competitive Examination, 2006. 5. 5. It has also been submitted on behalf of the petitioner that during counselling she filed an application before the authorities on 28.7.2006 informing them about the pendency of this writ petition. 6. Learned counsel for the petitioner has referred to the prospectus (Annexure2), which was issued for the purpose of Combined Competitive Examination, 2006. He submits that paragraph 14.5 of the said prospectus provides that 3% of the total seats in all the institutions are reserved for the disabled, who will be included in the total number of seats. This according to learned counsel means that the reservation has to be made in each of the institutions since the seats of all such institutions have been included for the purpose of reckoning 3% quota. In this regard-learned counsel has also referred to seats distribution as given in the statement (Annexure3), which is the same as the seats distribution mentioned in Annexure-B to the counter affidavit of the Board. According to learned counsel, for reserved category girls there is a similar reservation of 3% stated in the chart itself and this works out to 9 seats of the total seats available in the six Government Medical Colleges and similar is the position with respect to the disabled category quota candidates. However, learned counsel points out the discrimination that is being meted out to the disabled quota candidates vis a vis the other reserved category candidates, including the reserved category girl candidates, because from perusal of column-16 of the said Statement of Seats Distribution it appears that the quota for reserved category girls has been distributed in each of the six Government Medical Colleges and for the Patna Medical College two seats are reserved for the said category. Learned counsel submits that if the same criteria had been applied with respect to the disabled quota candidates then two seats ought to have been kept reserved in the Patna Medical College for them also, of which at least one seat would belong to the general category disabled quota arid the petitioner having stood first among the disabled quota candidates would definitely have got her admission in the Patna Medical College (hereinafter referred to as P.M.C) It is submitted that only on account of the gross discrimination practiced with respect to the disabled quota candidates, the petitioner is being deprived from studying at P.M.C., which was the sole purpose of her appearing again at the Combined Competitive Examination, 2006, 7. It is further submitted by learned counsel that the total number of M.B.B.S. seats available for candidates, who qualify in the State Combined Competitive Examination in PMC are 80 whereas that available in the Medical College at Gaya are only 39 and yet as a result of the discrimination practised by the State authorities none of the disabled quota candidates would have the opportunity of studying of PMC and all are being forced to study in the Gaya Medical College, which has less than half the number of seats compared to PMC. 8. Learned counsel further refers to the prospectus (Annexure-2), in table 2 of which the total number of seats and its distribution in each of the colleges are given and in foot note (iii) it is stated that "total seats in each institution are inclusive of disabled quota seats". 9. It is submitted by the learned counsel that while issuing the prospectus it had been clearly stated by the authorities concerned that there is a reservation of seat in each of the institutions for disabled quota candidates but the said principle was not followed and the disabled quota candidates have been left to get admitted in a Medical College which has not been preferred by the candidates during the early stages of the counselling and all the seats in P.M.C. and the other preferred Medical Colleges have been allowed to be filled up by the other candidates leaving disabled quota candidates with no choice but to take admission only in Gaya Medical College. Such action of the authorities, it is submitted, is in gross violation of the rights of the disabled quota candidates, who are entitled to take admission in any of the Medical Colleges according to the reservation quota available for them. 10. Learned counsel for the petitioner in support of his submission has also relied upon Section 390 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which is quoted below. "39. All educational institutions to reserve seats for persons with disabilities.-All 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." 11. From the said provision it is clear that all Government educational institutions and other educational institutions are obliged to reserve not less than three per cent seats for persons with disabilities. Learned counsel for the petitioner submits that all the Government educational institutions cannot be taken to mean all the Medical Educational institutions as a group, rather it can only mean that disabled quota candidates are entitled to reservation of three per cent seats in each of the Government Medical Colleges and for the said reason also the action of the authorities is in violation of the provisions of Section 39 of the Act, which is binding upon the authorities. 12. Learned Advocate General appearing for the Bihar Combined Entrance Competitive Examination Board, on the other hand, has tried to justify the action of the authorities as fair and reasonable. His first submission is that the prospectus does not envisage reservation of seats in each Medical College for candidates of disabled quota and the petitioner has not challenged the prospectus nor can she be permitted to challenge the same at this stage after having appeared in the competitive examination under the same and taken a chance under it. In this regard, learned Advocate-General aslso relied upon paragraph no. 14.5 of the prospectus which, he says, does not provide reservation in each of the institutions rather the prospectus indicates all the institutions taken together. So far as the said submission of the learned Advocate-General is concerned, I find that paragraph 14.5 of the prospectus neither speaks of the reservation in each institution nor speaks of a general reservation in all the institutions. So far as the said submission of the learned Advocate-General is concerned, I find that paragraph 14.5 of the prospectus neither speaks of the reservation in each institution nor speaks of a general reservation in all the institutions. In fact it is vaguely worded and that it merely provides for fixing the total number of seats that would be reserved for disabled quota candidates and the said total number is to be fixed on the basis of total seats available in all the Medical Colleges beyond that paragraph 14.5 of the prospectus does not say anything about the reservation for disabled quota candidates being confined to only one Medical College or whether it should be given in each of the said Medical Colleges. In fact, a reasonable inter-pretation of the said clause can only be that it speaks of reservation in all the institutions since it speaks of the quota or seats being fixed on the basis of quota available in all the institutions. Moreover the said submission of the learned Advocate General does not take into account foot note (iii) as given in Table 2, Schedule IIA of the prospectus which clearly states that total seats in each institution are inclusive of disabled quota seats. Thus, on a combined reading of paragraph 14.5 read with Table 2 Schedule-IIA of the prospectus, the only impression that anyone can gain is that the seats for disabled quota candidates are reserved in each of the institutions and not that they would be relegated to only one of the six Medical Colleges. 13. The second submission advanced by the learned Advocate General is that the reservation for the other categories like scheduled castes and scheduled tribes etc. are vertical reservation whereas the reservation for the disabled category is horizontal reservation and, therefore, the disabled quota candidates cannot be equated with the other categories like the reserved category girls. 14. For the said reasons, it is submitted that only after vertical reservation category and the general category is admitted then what remains at the bottom of the heap must be given to disabled quota candidate. The said submission has only to be noticed to be rejected. It is true that the reservation for disabled quota candidates is horizontal reservation. The horizontal reservation only means that the seat reserved for the disabled quota candidates would be included within the category to which he/she belongs. The said submission has only to be noticed to be rejected. It is true that the reservation for disabled quota candidates is horizontal reservation. The horizontal reservation only means that the seat reserved for the disabled quota candidates would be included within the category to which he/she belongs. Thus, if the disabled quota candidate belongs to the general category then the seat given to him will be part of the seats which are meant for the general category candidates. Similarly, if he belongs to scheduled castes or backward class category then the seat occupied by him will be included within the reserved category seats meant for the scheduled castes or backward class category respectively. But such horizontal reservation does not mean that the reservation in each of the institutions is not to be given as provided for the other reserved category. In fact, not doing so amounts to practising discrimination against the disabled quota candidates convered by the statutory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, who suffer from greater handicap as compared to the other candidates of their category. Thus a disabled quota candidate ion the general category, or any other category, would be suffering from handicap which no other candidate in that category has and he cannot be treated worse than them on that account. For the said reasons, it is expected of the State to give them preference over the other candidates in their category. Instead of doing so the State is relegating them to the position that they must study in an institution which has the least preference according to the choice of the candidates in order of merit. This is not permissible under the Scheme of reservation, whether it is vertical or horizontal, and such discrimination practised by the State is violative of Article 14 of the Constitution of India. 15. The third submission of the learned Advocate General is that if the petitioner is directed to be admitted in P.M.C.H. then it will mean that the last general category candidate selected for admission in the said college, namely, Nitish Kumar (Respondent No.5), whose over all rank in the merit list stood at 57, would have to be accommodated in another college, as a result the entire exercise of counselling will have to be undertaken again down the line. 16. 16. So far this argument is concerned, it does not concern the merit of the case. Moreover it fails to take into consideration the right of the petitioner to get admission into a Medical College of her choice according to the performance in the Combined Competitive Examination. Considering the valuable rights of the petitioner in this case the said plea cannot be accepted, specially in view of the fact that it is informed by the learned Advocate General that the second counselling has not yet taken place and, therefore, whatever re-adjustment is required can be made by the authorities concerned. 17. So far as the argument of learned counsel for the petitioner based on Section 39 of the Act is concerned, learned Advocate General was not able to counter the said submission. What is directed by the Parliamentary enactment cannot be ignored by the authorities and they are bound by the mandate of the Act. It must be remembered that the said Act was enacted in 1995 after the Economic and Social Commission for Asian and Pacific Region convened a meeting at Beijing in December, 1992 to launch the Asian and Pacific Decade of Disabled persons 1993-02. in that meeting the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region was adopted and India was also a signatory to the said proclamation. On the basis of India being a signatory to the said International convention and in exercise of the special powers conferred upon the Parliament by Article 253 of the Constitution to give effect to International agreement and convention, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted. It is strange that the State Government, after more than 10 years of the enactment of the said provisions has relegated the claim of disabled persons to the least preferred institution for pursuing their studies. 18. In this regard learned counsel for the petitioner has brought to my notice a notification (Annexure-5) issued by the Bihar Combined Competitive Examination Board with respect to the examination held in the year 2003 in which disabled quota seats were distributed among all the six Government Medical Colleges as given in paragraph 1.1 of the said notification. 18. In this regard learned counsel for the petitioner has brought to my notice a notification (Annexure-5) issued by the Bihar Combined Competitive Examination Board with respect to the examination held in the year 2003 in which disabled quota seats were distributed among all the six Government Medical Colleges as given in paragraph 1.1 of the said notification. From the said distribution of seats as given in Annexure-5, it is clear that in the P.M.C.H. one seat for general category and one seat for Scheduled Castes category disabled quota candidates had been reserved and similarly there had been reservation of seats for disabled quota candidates in each of the other Government Medical Colleges and other institutions. Learned Advocate General referred to paragraphs 2 and 7 of the supplementary counter affidavit filed by him and stated that the said practice was being followed earlier, whereas the State Government from the year 2004 fixed the disabled quota on faculty basis considering all the Medical Colleges within it. It is submitted by him that the petitioner's basic merit serial is Gen-351 and in the subsidiary merit serial is DQ-Gen-1 in general category of disabled quota; counselling is conducted on the basis of basic merit serial according to merit-cum-option number in each category and those candidates with basic merit higher than the petitioner had accordingly completed heir option; the last seat of MBBS course in P.M.C. was opted by merit serial General 57 in general category and the petitioner having less merit, with basic general-351, cannot claim any seat in P.M.C. as it would violate the principle of merit-cum-option; thus on the basis of her subsidiary merit serial DQ-1, the petitioner gets preference among only disabled candidates of general category and cannot take preference over any candidate, who has superior merit than the petitioner. 19. The aforesaid submissions must be rejected on the basis of what has already been stated earlier under the principle of reservation that are being followed in this Country and specifically in view of Section 39 of the Act. It is not open to the State Government to carryon counselling in the manner as they have chosen to do from 2004 onwards and in fact, in my opinion what they were doing till the year 2004 was in accordance with the provisions of Section 39 of 1995 Act. It is not open to the State Government to carryon counselling in the manner as they have chosen to do from 2004 onwards and in fact, in my opinion what they were doing till the year 2004 was in accordance with the provisions of Section 39 of 1995 Act. The action of the authorities is not only violative of Article 14 of the Constitution of India but it is also gross violation of the rights of the petitioner derived under section 39 of the Act. 20. Learned counsel appearing for respondent no.5 has not made any independent argument and has adopted the argument made by the learned Advocate General. His only grievance is that on the basis of his merit position, respondent no.5 is entitled, on account of higher rank, to study at PMCH and if he is not permitted then it affects his right. So far as the said argument is concerned, as submitted by the learned Advocate General himself, if the writ petition is allowed then the counselling has to be undertaken afresh with respect to respondent nos. 5 and those below him. 21. On a consideration of the aforesaid facts and circumstances, this writ petition is allowed and the respondents are directed to forthwith admit the petitioner in the Patna Medical College in the 1st year M.B.B.S. course. If as a result of such admission, counselling is required to be reconducted for candidates from merit serial no. 57 onwards, the same may be undertaken by the authorities without any delay. 22. Let a copy of this order be handed over to the learned Advocate General for immediate compliance.