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2012 DIGILAW 584 (UTT)

Mamta Rana v. State of Uttarakhand

2012-09-14

SUDHANSHU DHULIA

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Judgment : Sudhanshu Dhulia, J. (Oral) The petitioner is a candidate for admission in M.B.B.S. course in two Government Colleges, which are in the State of Uttarakhand, namely, Dr. Sushila Tiwari Medical College, Haldwani and Veer Chandra Singh Garhwali Government Medical College, Srinagar. The exam for these colleges was conducted by Govind Ballabh Pant University of Agriculture & Technology Pantnagar, District Udham Singh Nagar, and the examination is known as Uttarakhand Pre Medical Test 2012 (hereinafter referred to as UPMT 2012). 2. The petitioner belongs to a Scheduled Tribe community, namely, “Tharu”, which is notified as such in the State of Uttarakhand. The petitioner is also a permanent resident of Uttarakhand. Moreover, the petitioner is also a physically challenged candidate, having disability of 45%. A certificate for which has been annexed as annexure No. 1 to the writ petition, which is not in dispute. 3. In the recent examination for M.B.B.S. course conducted by respondent No. 3, there was a horizontal reservation of 3% for physically challenged candidates. The total number of seats for M.B.B.S. course were 170 out of which 4 were reserved for the physically challenged category. In the said examination, the petitioner procured 103 marks out of 200 marks. The cut off marks required for eligibility for the M.B.B.S. course is 50% for the General category and 40% for the reserved category candidates. The petitioner marks were much more than the minimum qualified marks. However, the petitioner could not get admission in the reserved quota of Scheduled Tribes, therefore, she claimed reservation under the physically challenged category for which 4 seats were reserved. The contention of the petitioner is that while giving reservation to the physically challenged category the respondents though granted admission to one Imran Alam under the General Phycially challenged category, in spite of the fact that he had lower marks than the petitioner as he (Imran Alam) obtained 101 marks out of 200 marks whereas the petitioner obtained 103 marks out of 200 marks. 4. A counter affidavit has been filed on behalf of respondent No. 2 i.e. Director General, Medical Health & Family Welfare, Government of Uttarakhand, Dehradun. 4. A counter affidavit has been filed on behalf of respondent No. 2 i.e. Director General, Medical Health & Family Welfare, Government of Uttarakhand, Dehradun. In the counter affidavit, the respondent admit the claim of the petitioner but have justified their stand for not granting the admission to the petitioner as she is a candidate belonging to Scheduled Tribe as according to the respondent No. 2 who is Director General, Medical Health & Family Welfare, Government of Uttarakhand, Dehradun and the Chairman of the Selection Committee, there is no reservation such as “handicapped Scheduled Tribe”, and since petitioner is a Scheduled Tribe candidate she cannot be given admission under the handicapped category. In other words all four seats reserved for handicapped are for such handicapped candidate who belong to General category. The precise stand of respondent No. 2 is reflected by the contents of the counter affidavit filed by him must be reproduced. In para 2(B) and para 2(C) of the counter affidavit filed by respondent No. 2 it has been stated as under:- “B That it is submitted that the petitioner belongs to the SC category and falls sub-category of handicapped. It is submitted that on the date of UPMT Counseling i.e. 24.08.2012 there was no vacant seat of handicapped sub-category of Scheduled Tribe, consequently, it was not possible to allot the seat of MBBS, to the petitioner, under the handicapped sub-category of Scheduled Tribe. C. That it is also worth mentioning here that in view of the Government Order dated 2/8/2011 and Government Order dated 24/8/2012 there is no provision for allotting the seat of any category in its sub-category of handicapped persons, in view of the mandate of the aforesaid Government Orders that a person would be given admission against its own sub-category in the reservation category such as no person who belongs to handicapped sub-category in a particular category cannot be given admission in any other category for example if a seat is vacant, under the handicapped quota of general category, the handicapped of Scheduled Caste or Scheduled Tribe category candidates cannot be given admission against that the seat even if the candidates secures the higher quality points marks and vise versa.” 5. The stand taken by the respondent in not granting the reservation benefit of a handicapped candidate to the petitioner is wholly incorrect approach, which is violative of law. The stand taken by the respondent in not granting the reservation benefit of a handicapped candidate to the petitioner is wholly incorrect approach, which is violative of law. Before dealing with the principle of reservation we must first refer to the legislation enacted by the Parliament in the year 1995 known as “Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to “Disability Act”). The Disability Act in short calls for an affirmative action from the Government for grant of various benefits to disable persons in order to remove the hardships being faced by them. The entire provision of the Act may not be referred, but Section 39 of the Disability Act in particular needs to be referred which reads under:- “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.” Therefore, the reservation of 3% in education institutions is not being made by the respondents as a matter of charity to those who are disabled but it is being done, as it is now the mandate of law. 6. I am not even going into the issue as to whether out of 170 seats they would have reserved “four seats” or more for the handicap, but the fact of the matter is that four seats are reserved for handicapped candidates. These seats have to be given to the handicapped candidates only. The denial of a handicapped seat to the petitioner, who is a handicap by applying principle of reservation, that too against the petitioner who also belongs to a reserved category of Scheduled Tribe, is a wholly wrong and inappropriate approach on the part of the respondents. 7. The petitioner also relies upon a Division Bench of this Court dated 17.05.2012 in WPSB No. 25 of 2012. The Division Bench of this Court in broadly similar circumstances had held a similar approach of State Authorities to be an incorrect approach. It held as follows:- “4. In one of the writ petitions, namely, Writ Petition (S/B) No. 25 of 2012, a counter affidavit has been filed by the Commission. The learned counsel for the Commission has requested us to treat the said counter affidavit as the counter affidavit filed in all other writ petitions too. It held as follows:- “4. In one of the writ petitions, namely, Writ Petition (S/B) No. 25 of 2012, a counter affidavit has been filed by the Commission. The learned counsel for the Commission has requested us to treat the said counter affidavit as the counter affidavit filed in all other writ petitions too. We have accepted the request. From the counter affidavit, so filed, it appears that the assertions of the petitioners that they secured more than 91.25 marks in the preliminary examination is not in dispute and at the same time certain women candidates belonging to open merit category, who secured 91.25 marks in the preliminary examination, have been invited to sit in the main examination. According to the Commission, since no horizontal reservation was available for scheduled caste candidates, in the circumstances as above, no one from that category was considered. Men and women belonging to scheduled caste community were, accordingly, considered together and on the ratio 1 : 10 petitioners did not come within the zone of consideration having had secured such marks, which they secured in the preliminary examination, for being considered for the only reserved post available for a scheduled caste candidate. It was contended that people belonging to that class can only be considered in horizontal reservation available to that class. It was contended that since the petitioners held out to be belonging to scheduled caste community, they were considered only as members of the said community and, accordingly, they were not considered in horizontal reservation available for women in the general category. The said contention/submission makes it abundantly clear that the Commission failed to discharge its obligation of preparing a combined merit list for the purpose of picking up those belonging to open merit category, which means every respondee and every person, who had been invited to appear in the preliminary examination, as, in law, open category includes those who have reservation in their favour as also those who do not have any reservation in their favour. The faux pas was created, thus, by failing to discharge legal and constitutional obligation of preparing one single merit list to first accommodate the open category candidates. The faux pas was created, thus, by failing to discharge legal and constitutional obligation of preparing one single merit list to first accommodate the open category candidates. As a result, though, each of the petitioners belong first to open category and then to reserved category, they lost their right to be considered as a candidate for open category despite securing much more than those who have been given the benefit under the said category. The law on the subject is absolutely clear. It is obligatory on the part of the Commission to prepare a combined merit list for supplying the quota available to merit. If in that quota, by reason of merit, a person, who also belongs to reserved category, fits, he is fitted in the open merit category and not in the reserved category to which he belongs. While supplying the open category quota, if people belonging to reserved category, comes within by dint of their merit, it is obligatory on the part of the Commission to treat those people in the open merit category, and to ensure that the number of berth as are available on the basis of horizontal quota have also been supplied. If it is found that less than that has been supplied then appropriate adjustment is required to be made by taking off from the list the person who secured lesser and to bring on the list person who has secured the next better and belonging to horizontal category. After this exercise is over, then only the Commission can proceed to consider again on the basis of merit the quota available to reserved category and, while doing so, to adopt the same procedure in relation to horizontal quota. Instead of discharging that obligation, the Commission prepared two separate lists, one for the reserved category candidates and the other for open merit category candidates and, while dosing so, totally forgot that the reserved category candidates, before being entitled to be part of such category, belong to open merit category being citizens of the country. 5. In the facts and circumstances as above, for no just reason, petitioners have been denied their right to be examined at the main examination. For no just reason, but for the reason that the Commission acted in a manner, which is not permissible, legal rights of the petitioners have been affected. 5. In the facts and circumstances as above, for no just reason, petitioners have been denied their right to be examined at the main examination. For no just reason, but for the reason that the Commission acted in a manner, which is not permissible, legal rights of the petitioners have been affected. We, accordingly, allow the writ petitions, confirm the interim orders and direct declaration of results of the petitioners. It is made clear that having regard to the facts narrated above, it shall be deemed that the petitioners have qualified in the preliminary examination under the category “women” available for open merit candidates and, accordingly, shall only be considered on the basis of their merit in the said category only. 6. We are told that some of these writ petitions are by those women candidates, who belong to Other Backward Class community, their writ petitions are also allowed with the same directions in view of the facts and the law dealt with above.” 8. This Court is also of the categorical view that the respondents have committed gross error while denying seat under the physically handicapped category to the petitioner. They should have prepared one merit list alone and out of that list such physically handicapped candidates, who were eligible for such reservation should have been granted admission. Admittedly, the petitioner has obtained higher marks than another candidates, namely, Imran Alam who has been given admission in the physically handicapped quota. The petitioner has been denied this quota for the simple logic that though she is physically handicapped she is such in the category of Scheduled Tribe, therefore, she cannot be given admission in the General Physically Handicapped category. This stand of the respondents amounts to a punishment to the petitioner, for being a Scheduled Tribe. 9. It has been informed to the Court that there are four seats for physically handicapped candidates (General) in the M.B.B.S. course on which so far only one candidate i.e. Imran Alam has got admission; therefore, three seats are still lying vacant. This Court while granting interim order dated 31.08.2009 reserved one seat for the petitioner subject to the final decision of the present writ petition. 10. In view of the above, the writ petition is allowed. This Court while granting interim order dated 31.08.2009 reserved one seat for the petitioner subject to the final decision of the present writ petition. 10. In view of the above, the writ petition is allowed. A mandamus is issued to the respondents to give admission to the petitioner on the physically handicapped category while doing so the candidate Imran Alam who has already got admission and who has not been made a party in the present writ petition shall not be disturbed. Moreover candidate in physically handicapped category shall be given admission strictly in accordance with their merit, meaning thereby if there are other physically handicapped candidates having high marks than the petitioner they shall first be admitted and then the petitioner. 11. With the above directions, the writ petition is disposed of. 12. No order as to costs.