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2007 DIGILAW 94 (PAT)

Nawal Kishor v. State Of Bihar

2007-01-12

V.N.SINHA

body2007
Judgment V.N.Sinha, J. 1. Heard learned counsel for the petitioner and the State. 2. Petitioner, who suffered post-polio deformity of right upper limb with loss of power of right shoulder leading to loss of function of right hand, appeared in the Bihar Combined Entrance Competitive Examination, 2004 (hereinafter referred to as the "B.C.E.C.E., 2004), duly conducted by the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as the "Board") was called to appear in the counselling on the basis of his merit serial of P.C.M.: DQ.ST-2, has filed this writ application assailing the order bearing No. 649/ 2004 dated 27.8.2004, Annexure-7, issued under the signature of the Controller of Examination of the Board, whereunder he has been refused admission in any of the Engineering stream on the ground that his right hand is completely non-functional and he is unable to pursue his studies in any of the Engineering stream as provided in paragraph 14.5.2 of the prospectus issued by the Board for conducting B.C.E.C.E., 2004. 3. It is submitted on behalf of the petitioner that post-polio deformity of right upper limb, as has been certified by the medical authorities, which is evident from the certificate issued by the Professor & Head of the Department of Orthopaedics, Jawaharlal Nehru Medical College & Hospital, Bhagalpur and Civil Surgeon-cum-Chief Medical Officer, Bhagalpur dated 28.10.1998 and 16.8.2004, as contained in Annexures-1 and 6 to this application indicates that petitioner can be considered for admission in any of the Engineering course in view of his merit serial of PCM: DQ.ST-2 but the Controller of Examination of the Board has arbitrarily refused such admission under the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7, which should be quashed on the ground of being arbitrary and violative of Article 14 of the Constitution of India as also the provisions contained in Sec.39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the "Act"), which mandate all educational institutions to reserve seats not less than three per cent for persons with disabilities. It is further submitted on his behalf that reference of Clause 14.5.2 of the prospectus in the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7 is wholly misplaced as till date of issue of the impugned order, Annexure-7 the authorities had not finalized guidelines for evaluation and assessment of various disabilities which would entitle any of the disabled candidate for admission under the disabled category and thus the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7, is required to be set aside on that ground alone. 4. Appreciating the aforesaid submission, this Court under interim order dated 14.12.2004 passed in this writ case directed the counsel for the Board to file counter affidavit appending the guidelines for evaluation and assessment of various disabilities. The Examination Controller of the Board filed counter affidavit dated 21.12.2004 in which he accepted the position that the petitioner was suffering from post-polio deformity of right upper limb with loss of power of his right hand which was completely non-functional and according to the Board he was not fit for admission in any of the Engineering streams and appreciating his physical condition the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7 was issued with reference to paragraph 14.5.2 of the prospectus. 5. The Examination Controller of the Board filed supplementary counter affidavit on 27th January, 2005 in which, besides reiterating the statements made in the counter affidavit, further statement was made that the result of the B.C.E.C.E., 2004 was published on 20.7.2004 on the basis of the seats as provided in B.C.E.C.E., 2003 as till the date of publication of result the Department of Science and Technology of the State Department of Science and Technology of the State Government had not communicated any change in the availability of seats for B.C.E.C.E., 2004 and the Board presumed that same number of seats were available for the B.C.E.C.E., 2004 which was available for B.C.E.C.E., 2003, accordingly, merit list was published showing the petitioner at serial no. 2 in the Scheduled Tribe Disabled Quota. Later, the Department of Science and Technology of the State Government under letter no. 2 in the Scheduled Tribe Disabled Quota. Later, the Department of Science and Technology of the State Government under letter no. 1300 dated 13.8.2004, Annexure-D to the supplementary counter affidavit released the seat distribution for B.C.E.C.E., 2004 in which no seat in Scheduled Tribe Disabled Quota was made available which in terms of paragraph 4 of the prospectus became relevant as any change in Institution/number of seats made known until the time of counselling/ interview is required to be taken into account before finalizing the admission. It was further submitted in the supplementary counter affidavit that in view of the provisions of The Bihar (In Admission In Educational Institutions) Reservation Act, 2003 (hereinafter referred to as the "Reservation Act"), reservation for Scheduled Tribe Category is only one per cent and only 7+5 seats were available for the Schedule Tribe Category in the Government/Private Engineering Colleges for B.C.E.C.E., 2004, 3 per cent of the available seats i.e. 7+5 works out to less than 0.5 seat, appreciating the said fact, no disabled quota seat in Scheduled Tribe Category was earmarked for B.C.E.C.E., 2004. 6. The Examination Controller filed second supplementary counter affidavit on 24th August, 2006 enclosing the resolution of the State Government bearing Memo No. 1113 dated 27.8.2005 by which guidelines for evaluation and assessment of various disabilities was fixed by the Government so that the candidature of the disabled for admission in various streams of Engineering courses may be considered in the light of their disabilities. It appears from perusal of the said resolution bearing Memo No. 1113 dated 27.8.2005 that those who have suffered complete immobility of one hand are eligible for being considered for admission in Civil, Architecture, Mechanical and Production and Textile Engineering Course. 7. Learned Advocate General, appearing for the Board, with reference to the averments made in the counter affidavit and the supplementary counter affidavits, has submitted that there being no seat earmarked for disabled amongst Scheduled Tribes for the B.C.E.C.E., 2004, this writ petition, praying inter alia to quash the order bearing No. 649 of 2004 dated 27.8.2004, Annexure-7 refusing admission on the ground that nature of the disability of the petitioner was such that he was not suitable for being admitted in any of the streams of Engineering, should be dismissed. 8. 8. Learned counsel for the petitioner, in rejoinder, submitted that the impugned order bearing No. 649 of 2004 dated 27.8.2004, Annexure-7 is to be tested on the grounds stated therein and not on the grounds taken in the supplementary counter affidavit and extraneous to the impugned order bearing No. 649 of 2004 dated 27.8.2004, Annexure-7. It was further submitted that by providing one per cent reservation for Scheduled Tribes in the Reservation Act, the disabled amongst the Scheduled Tribes, have been completely deprived of the benefit of the three per cent reservation granted to them under the Act, as according to the resolution of the State Government bearing No. 210 dated 4.6.2002, disabled of a particular reserved category is to be provided three per cent reservation out of the seats earmarked for that category. For B.C.E.C.E., 2004 12 seats were marked for Scheduled Tribe Category and three per cent of those 12 seats is 0.36, which is less than 0.5 and thereby the State has not even provided even one seat for disabled amongst the Scheduled Tribe, which tantamounts to complete deprivation of the benefits of the Act to the disabled amongst the Scheduled Tribe. In this connection, it was also submitted that the Act was passed by the parliament as India is signatory to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. In the background of the provisions of the Act with special emphasis on Sec.39, it was submitted that the disabled amongst the Scheduled Tribes cannot be deprived of reservation on the ground that their share of 3 per cent out of the 12 earmarked seats comes only to 0.36 which is less than 0.5 as the said instruction of the State Government deprives disabled amongst the Scheduled Tribes of the benefit of the Act and this Court should not only quash the impugned order bearing No. 649 of 2004 dated 27.8.2004, Annexure-7 but thereafter direct the Board to provide at least one seat for the disabled amongst the Scheduled Tribe. 9. 9. Having heard counsel for the parties and having considered the pleadings filed by them, I am of the view that the grounds set forth in the impugned order that petitioner is not eligible for being considered for any of the Engineering stream is wholly erroneous as from the Medical Certificates dated 28.10.1998 and 16.8.2004 as contained in Annexures 1 and 6 and the averments made in the counter affidavit itself, it appears that the percentage of the disability of the petitioner is 60/66 and thus he is qualified for being admitted in the Civil, Architecture, Mechanical, Production and Textile Engineering Course, which is evident from the resolution of the State Government bearing Memo No. 1113 dated 27.8.2005 and in appreciation of the same, the impugned order bearing No. 649 of 2004 dated 27.8.2004, Annexure-7 is quashed. The other submission that there were only 12 seats in the Scheduled Tribe Category for B.C.E.C.E., 2004 and three per cent of 12 shall be less than 0.5 shall also not deter this Court from directing the authorities to admit the petitioner in any of the Engineering Course for which he is suitable as, according to this Court, the benefit of reservation allowed to a disabled under Sec.39 of the Act cannot be taken away by the circular of the State Government providing for rotation if the number of seats are less than 0.5 per cent for a particular category as perusal of Sec.39 of the Act itself provides that reservation for the disabled may exceed 3 per cent. 10. In the result, the writ petition is allowed and the authorities are directed to admit the petitioner in any of the Engineering Courses for which he is suitable in terms of the resolution of the State Government bearing Memo No. 1113 dated 27.8.2005 for the Session beginning in June-July, 2007.