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Madhya Pradesh High Court · body

2008 DIGILAW 1297 (MP)

Rakhi Mangal v. State of M. P.

2008-11-06

A.K.PATNAIK, AJIT SINGH

body2008
Judgement A. K. PATNAIK, C. J. :- The petitioner is a person with disability and has filed this writ petition under Article 226 of the Constitution challenging the provisions of Rule 1.8 (4) and Rule 1.20(11) of the Madhya Pradesh Medical Dental Post Graduate Course Entrance Examination Rules, 2008 (for short 'the Rules 2008') made under Section 10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973. 2. The facts relevant for disposal of the petition briefly are that the State Government made the Rules, 2008 for admissions to the Post Graduate Medical (M. D. and M. S.) course, Post Graduate Diploma and Dental (MDS) course in Medical and Dental Colleges in the State of Madhya Pradesh. Rule 1.8 of the Rules, 2008 provides for reservation and sub-rule (4) of Rule 1.8 provides that 3% seats are reserved for admission to Post Graduate courses for physically handicapped persons who are bona fide residents of Madhya Pradesh and belong to ST, SC, OBC and Unreserved categories and that such reservation will be horizontal. Rule 1.19 of the Rules, 2008 is titled as "Merit List" and sub-rule (1) of Rule 1.19 provides that the merit list will consist of the number of candidates equal to the number of seats available for allotment in State quota and separate merit list will be prepared for in-service and non service (open) candidates. Rule 1.20 of the Rules, 2008 provides for counselling and sub-rule (11) of Rule 1.20 provides for counselling for non-service candidates in the following sequence : (A) ST Category (B) SC Category (C) OBC Category (D) Unreserved Category The petitioner appeared in the Pre P. G. examination as a physically handicapped candidate in non-service category (Open) and secured 124.25 marks out of 200 and was placed in the second position in merit list of non-service (open) category for physically handicapped candidates. The physically handicapped candidate who was placed in the first position in the merit list of non-service (open) category did not appear for counselling but the petitioner appeared for counselling, but she was not offered any degree seat but was offered a seat in Diploma in Ophthalmology and two seats in Diploma in E. N. T. and she was compelled to give her option in Diploma in Ophthalmology and she was allotted a seat accordingly. 3. 3. The petitioner has filed this writ petition praying that Rule 1.8(4) of the Rules, 2008 in so far it provides that reservation for physically handicapped persons will be horizontal be declared ultra vires and Rule 1.20(11) of the Rules, 2008 which provides for sequence of counselling be declared illegal. The petitioner has also prayed that the tables annexed to the Rules, 2008 in so far as they do not earmark degree and diploma seats for Physically Handicapped candidates be declared ultra vires and that the respondents be directed to give admission to the petitioner in M. D. Course in Radiology, Pathology or Paediatrics. 4. Mr. Rajendra Shrivastava, learned counsel appearing for the petitioner, submitted that Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (for short 'the Act of 1995') provides that 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. He submitted that reservation for physically handicapped persons therefore will have to be vertical and not horizontal and the provision in R. 1.8(4) of the Rules, 2008 that such reservation for physically handicapped persons will be horizontal is ultra vires. In support of his contention, he cited the decision of Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar, AIR 2007 SC 3136 . He further submitted that by not indicating in the tables 1, 3 and 5 annexed to the Rules, 2008 the seats in Post-Graduate Degree and Post-Graduate Diploma courses reserved for physically handicapped persons, the rule making authority has violated S. 39 of the Act of 1995 as well as Art. 14 of the Constitution because the residual seats which are not opted for by the SC, ST, OBC and UR candidates will be left for physically handicapped SC, ST, OBC and UR candidates and the physically handicapped candidates will be forced to take seats in courses which no other candidates opt for. 5. Mr. Vijay Shukla, learned Deputy Advocate General, appearing for the respondent Nos. 1 and 2, submitted relying on the return filed on behalf of the respondents Nos. 1 and 2 that the petitioner has been allotted a diploma seat and as per Rules 20(7) and 20(15) of the Rules, 2008 she is not entitled to allotment of any other seat. Mr. Vijay Shukla, learned Deputy Advocate General, appearing for the respondent Nos. 1 and 2, submitted relying on the return filed on behalf of the respondents Nos. 1 and 2 that the petitioner has been allotted a diploma seat and as per Rules 20(7) and 20(15) of the Rules, 2008 she is not entitled to allotment of any other seat. He further submitted that after having accepted the diploma seat allotted to her she cannot now raise a grievance that a degree seat should have been allotted to her. He further submitted that as per the 2008 Rules 3% reservation has been provided for physically handicapped persons in all four categories i.e. UR, ST, SC and OBC and according to the rules any Physically Handicapped candidate has to make his claim in his own category and this is because 3% reservation in favour of the physically handicapped candidates is a horizontal reservation. He submitted that 3% of the total seats works out to 9 seats, 7 for non-service physically handicapped candidates and 2 for in-service Physically Handicapped candidates. He finally submitted that for the Academic Session 2008-09 the last date of counselling was extended up to 10th June, 2008 pursuant to directions of the Supreme Court and hence no admission can be given to the petitioner after 10th June, 2008 in any seat. 6. Mrs. Indira Nair, learned senior counsel appearing for respondent No. 3, submitted that under Regulation 10 of the Postgraduate Medical Education Regulations, 2000 made by the Medical Council of India, migration/transfer of students undergoing any post-graduate course, degree/diploma, cannot be permitted by any University or any authority. She however submitted that this provision in the Regulation does not bar a student from taking fresh admission in a subsequent academic session in a different post-graduate course, degree or diploma. 7. The first question which we have to decide in this case is whether the provision in Rule 1.8(4) of the Rules, 2008 that reservation in favour of physically handicapped persons will be horizontal is ultra vires. There is no provision in the Constitution enabling the State to provide for reservation of seats in educational institutions for disabled persons. There is however a mandate in S. 39 of the Act of 1995 to make such reservation, which reads as follows : "39. There is no provision in the Constitution enabling the State to provide for reservation of seats in educational institutions for disabled persons. There is however a mandate in S. 39 of the Act of 1995 to make such reservation, which reads as follows : "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." Thus, S. 39 of the Act of 1995 provides that all Government educational institutions and other educational institutions receiving aid from Government shall reserve not less than three per cent. seats for persons with disabilities but it does not indicate whether such reservation will be horizontal or vertical. Hence it will be for the appropriate Government to decide whether such reservation of seats for persons with disabilities in Government educational institutions and other educational institutions receiving aid from the Government would be horizontal or vertical. 8. In Mahesh Gupta v. Yashwant Kumar Ahirwar ( AIR 2007 SC 3136 ) (supra) cited by Mr. Shrivastava, the Supreme Court has not held that reservation in favour of physically handicapped persons cannot be horizontal. The Supreme Court has only held that reservation for women or handicapped persons would not come within the ceiling of 50% reservation fixed by the Supreme Court in Indra Sawhney v. Union of India (1992) 3 SCC 212 : AIR 1993 SC 477 for the reserved categories of candidates (SC, ST and OBC). In the present case, we find that in Rule 1.8 of the Rules, 2008, 20% seats are reserved for candidates belonging to ST, 16% seats are reserved for candidates belonging to SC and 14% seats are reserved for candidates belonging to Other Backward Classes and in R. 1.8(4) of the Rules, 2008 a separate 3% reservation has been provided for physically handicapped persons. Hence the reservation of 3% of the seats in favour of the physically handicapped persons is over and above the 50% reservation in favour of ST, SC and OBC. The provision in the Rules, 2008 is thus in accordance with the decision of the Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar and others (supra). 9. Hence the reservation of 3% of the seats in favour of the physically handicapped persons is over and above the 50% reservation in favour of ST, SC and OBC. The provision in the Rules, 2008 is thus in accordance with the decision of the Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar and others (supra). 9. We are thus of the view that under S. 39 of the Act of 1995 the State can as a policy decision provide for horizontal reservation of seats in favour of disabled persons in Government educational institutions and educational institutions receiving aid. Hence the provision in R. 1.8(4) of the Rules, 2008 made by the State Government that reservation in favour of physically handicapped persons will be horizontal reservation is not ultra vires the Constitution or the Act of 1995. 10. The second question which we have to decide in this case is whether the Rules, 2008 are ultra vires inasmuch as they do not earmark in the tables annexed to the Rules the seats in Post-Graduate Degree/ Diploma Courses reserved for physically handicapped persons. Section 39 of the Act of 1995 has to be read along with the short and long titles of the Act of 1995 for understanding the purpose of the reservation of 3% seats for persons disabilities in all Government educational institutions and other educational institutions receiving aid from the Government. As observed by S. R. Das, J. in Ashwini Kumar Ghosh v. Arvinda Bose, AIR 1952 SC 369 : "It is now settled law that the title of a statute is an important part of the Act and may be referred to for the purpose of ascertaining its general scope and of throwing light on its construction, although it cannot override the clear meaning of the enactment." The short title of the Act of 1995 reads : "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995." The long title of the Act states that it is an Act to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian Pacific Region. 11. 11. In Union of India v. Sanjay Kumar Jain (2004) 6 SCC 708 : ( AIR 2004 SC 4139 ), in para 8 at page 712 of the SCC, the proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region adopted at Beijing in December, 1992 has been referred to and it is stated therein that to give full effect to the proclamation it was felt necessary to enact a legislation to provide for the following matters : (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities : (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons, with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons : (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities ; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream." (Emphasis supplied) 12. We may now examine the Rules, 2008 to find out whether the reservation of 3% of the seats provided therein in favour of physically handicapped persons achieves the purposes set out in the Short and Long Titles of the Act of 1995 and the proclamation adopted at Beijing in December, 1992. Table No. 5 states that 7 seats would be reserved for physically handicapped persons (non-service) and two seats would be reserved for physically handicapped persons (in-service) which total to 9 seats and this works out to 3% of the total of 308 seats. In the Tables 1, 2, 3 and 4 in which the seats in the Post-Graduate Degree/Diploma courses have been distributed amongst UR, SC, ST and OBC categories in the different Government educational institutions or educational institutions receiving aid from the Government at Bhopal, Gwalior, Indore, Jabalpur and Rewa, no specific seats have been earmarked for physically handicapped persons. In the Tables 1, 2, 3 and 4 in which the seats in the Post-Graduate Degree/Diploma courses have been distributed amongst UR, SC, ST and OBC categories in the different Government educational institutions or educational institutions receiving aid from the Government at Bhopal, Gwalior, Indore, Jabalpur and Rewa, no specific seats have been earmarked for physically handicapped persons. The result is that physically handicapped persons who have been selected for admission and have got less marks than other candidates belonging to ST, SC, OBC and UR categories are compelled to accept seats either in the degree or in the diploma course which are not opted for by candidates belonging to SC, ST, OBC and UR categories other than the physically handicapped candidates by operation of Rule 1.20(9) and Rule 1.2 (11) of the Rules, 2008 which provides for sequence of counselling amongst in-service and non-service candidates respectively. Disabled persons or physically handicapped candidates thus will not get equal opportunity for studying PG Course, Diploma or Degree, or will not get employment in jobs which they can perform and will be denied the right to fully participate in the medical/ health programmes of the country and as a result, they cannot get integrated into the social mainstream. In short, the entire purpose of reservation of 3% of seats in the Government Educational Institutions and Institutions receiving aid from the Government as provided in S. 39 of the Act of 1995 will be frustrated. 13. The 2008, Rules are thus ultra vires the Act of 1995 inasmuch as they do not earmark seats in Post-Graduate Diploma and Degree Courses in the tables annexed to the Rules, 2008. We, however, make it clear that it is for the rule making authority to decide which are the courses in the Post-Graduate Degree or Diploma in which seats should be reserved for persons with disabilities keeping in mind the physical requirements of students for different courses of study but it must earmark some seats in the Post-Graduate Degree and some seats in the Post-Graduate Diploma, as otherwise the object of 3% reservation provided for in S. 39 of the Act of 1995 will not be attained. 14. 14. Since the petitioner has already taken admission in diploma course in academic year 2008-2009 and the last date for admission was 10th June, 2008, we cannot direct the authorities to give admission to the petitioner in the PG course during the academic year 2008-2009. We, however, direct the State Government to make fresh rules for admission to PG Medical and Dental Courses for the academic year 2009-10 in accordance with the observations made in this judgment earmarking specific seats for persons with disability in Post-Graduate Degree and Post-Graduate Diploma Courses and to give admission to the petitioner in accordance with such fresh rules to a specific seat in the Post-Graduate Degree or Diploma Course during the academic session 2009-10. Order accordingly.