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2016 DIGILAW 446 (JK)

Shivangi Sharma v. State of J&K

2016-09-01

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. Law mandates the State to provide reservation to the persons belonging to Scheduled Castes/Scheduled Tribes Category. Law also puts an obligation on the State to provide reservation to the differently abled persons, who fit into the definition of "disability" as defined in Section 2(d) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In tune with this legal obligation, the provisions are made for providing such reservations to SC/ST categories on the one hand and the disabled persons on the other hand, not only in the employment, but for admissions to educational institutions as well. In order to ensure that these categories are able to get the fruits of these reservations in reality, and that provision does not remain only on papers, provision for relaxed standards are also made, i.e., rigours of the standards applicable for General Category/Unreserved Categories are softened and relaxed for these categories. So far so good, as this is in tune with the Constitutional mandate. However, an important issue raised by petitioner in the present petition, is: whether the extent and quantum of this relaxation can be different for disabled qua SC/ST categories. To put it straight, respondent University has provided concession of marks in the minimum eligibility requirements for candidates belonging to SC/ST. However in case of persons with disabilities, relaxation is nowhere provided. Whether different treatment to the two categories is permissible under law or it amounts to hostile discrimination insofar as disability category is concerned, is the issue needs to be examined in the present petition. The petitioner is possessed of Degree in B.A. She is physically disabled person with 75% permanent disability due to 'Cerebral Palsy' disease, as is discernible from the certificate concomitant with the writ petition. With this kind of disability, indubitably, she is governed by the definition of disability under the Disabilities Act. The petitioner is possessed of Degree in B.A. She is physically disabled person with 75% permanent disability due to 'Cerebral Palsy' disease, as is discernible from the certificate concomitant with the writ petition. With this kind of disability, indubitably, she is governed by the definition of disability under the Disabilities Act. Petitioner, through medium of instant petition, is seeking quashment of Admission Notification-2015 issued by the Dean Academic Affairs, University of Jammu, under endorsement No. DAA/15/1478-1525, dated 04.07.2015 pursuant to which schedule for the candidates for admission to various academic programmes of the University/Offsite Campuses/Affiliated Colleges for the Academic Session 2015-16 was notified in absence of providing reservation to the candidates with disabilities (Orthopedically Handicapped and Blind Candidates), Supernumerary 3%, in terms of Statute 6-B(x) providing break up to the reserved categories wherein the relevant category of the petitioner figures at Category-X of the Jammu University Entrance Test Prospectus-2015; with a further direction to adhere to/follow Statute 6-B category-(x) providing for reservation of the candidates with disabilities (Orthopedically Handicapped and Blind Candidates) Supernumerary 3% and thereafter consider the petitioner for her reservation to undergo Masters' Degree in Sociology in the aforementioned category while providing relaxation in qualifying marks from 30% to 25% on the analogy and principle on which such facility came to be provided to the Scheduled Caste and Scheduled Tribe categories. 2. The facts-in-brief as pleaded in the writ petition are that respondent University issued Advertisement for admission to various academic programmes of the University of Jammu, Jammu/Offsite Campuses/Affiliated Colleges for the Academic Session 2015-2016 through a Common Entrance Test JUET 2015, in which petitioner also participated for being admitted to pursue Master's Degree in Sociology in Jammu University. Accordingly, she appeared in the Entrance Test and secured 42.5 marks. Perusal of Admission Notification issued by Jammu University under endorsement No. DAA/15/1478-1525, dated 04.07.2015, inter alia, provides that qualification marks for both Post Graduation and Under Graduation were to remain same, i.e., 30% marks for General category and 25% for SC and ST categories. It is contended that in the Notification, reservation slots have been provided for SC/ST categories and other categories have been blacked out. It is also contended that slot for the Handicapped Category as contemplated under category 6-B (x) of the Statute governing admission has not been provided. For facility of reference, relevant provision, i.e., Statute 6-B (x) governing admissions is reproduced herein below:- 6. It is also contended that slot for the Handicapped Category as contemplated under category 6-B (x) of the Statute governing admission has not been provided. For facility of reference, relevant provision, i.e., Statute 6-B (x) governing admissions is reproduced herein below:- 6. (B)(x) Reserved Category Seats:- "Candidates with disabilities (Orthopedically Handicapped and Blind candidates) Supernumerary 3%" 3. Petitioner avers that impugned Admission Notification is bad in law and in violation of Statute 6-B category (x), as no breakup of the handicapped category has been provided. Being aggrieved, petitioner has filed the instant petition on the grounds taken therein. 4. On notice, respondents have filed objections wherein it is insisted that University courses are covered by the Statute, which provides for the eligibility and other conditions for getting admission in the Postgraduate Courses. The Jammu University Entrance Test (JUET) came into existence in the year 2011 and as per this Statute, the qualifying marks for admission to PG/UG courses for general category shall be 30% while for SC/ST categories this shall be 25% and this relaxation has not been extended to other reserved categories except SC/ST till date. Respondents maintain that University has applied reservation to all the reserved categories and under category (x), i.e., the candidates with disability (Ortho physically handicapped and blind candidates) 3% reservation supernumerary has been provided. Respondents' further contention is that petitioner submitted her application form under Handicapped category and appeared in the Entrance Test and has secured 42.5 marks, which come around 28%. As per the Admission Notification of 2015, the candidates should have secured 30%, i.e., 45 marks in General and 25%, i.e., 37.5 marks in SC/ST categories, to become eligible for admission. The petitioner has secured less than 45 marks and therefore, was not eligible to seek admission in the Sociology Department. It is insisted that relaxation of marks in the Entrance Examination has been provided to the extent of 25% only to SC/ST categories and all other categories including general category had to secure 30% marks in the Entrance Examination. It is further contended that petitioner cannot, as a matter of right, seek relaxation in the percentage of marks in the Entrance Examination. It is further contended that petitioner cannot, as a matter of right, seek relaxation in the percentage of marks in the Entrance Examination. Knowing fully well about the eligibility condition, petitioner participated in selection process and after participation failed to secure minimum marks as required, she cannot turn around and challenge the criteria, which was duly notified and known to all the candidates. The reservation has been provided to the handicapped category also but petitioner, though a handicapped category candidate, could not secure minimum marks and has been denied admission. 5. Heard learned counsel for the parties and perused the record. 6. It is admitted case of the parties that JUET 2015 was conducted for admission to various courses, in which petitioner also partook for being admitted to pursue Master's Degree in Sociology. It is also admitted that petitioner being handicapped submitted her application form under handicapped category and consequently she appeared in Entrance Test. Petitioner's main contention is that no breakup of Handicapped Category has been provided as compared to other reserved categories, which is in violation of the rules occupying the field. 7. It is the case of the petitioner that she is admittedly suffering from a disease known as "Cerebral Palsy" which has rendered her 75% handicapped permanently and that the disability has been evaluated by the Board of Doctors. The details in this behalf are coming fore from the certificate, copy whereof is annexed as Annexure-B with writ petition. 8. Learned counsel for petitioner, while dilating his arguments, submitted that Jammu University Entrance Test Prospectus-2015 provides that any study governing admissions at Statute 6B, break up of the Reserved Categories at category (x), reservation is to be provided to candidates with disabilities (Orthopedically Handicapped and Blind candidates) Supernumerary 3%, therefore, slot was required to be provided to the handicapped person on the analogy of principle of SC/ST category. He contends that neither relaxation in qualifying marks has been provided on the analogy of principle of SC/ST categories nor has any slot been fixed for handicapped candidates in accordance with the provisions of Prospectus 2015. 9. On the other hand, learned counsel for respondents states that petitioner cannot, as a matter of right, seek relaxation in percentage of marks in entrance examination. 9. On the other hand, learned counsel for respondents states that petitioner cannot, as a matter of right, seek relaxation in percentage of marks in entrance examination. Knowing fully well about eligibility condition, petitioner participated in selection process and after participation failed to secure minimum marks as required, cannot turnaround and challenge the criteria which was duly notified and known to all the candidates. The reservation has been provided to handicapped category also but petitioner though a handicapped category candidate, could not secure the minimum marks and has been denied admission. Relaxation in percentage has been provided to SC/ST category candidates to the extent of 5% which is not applicable to other categories including handicapped category as per the Statute of Jammu University. The allegations of arbitrariness and illegal action are denied and there is no violation of any of the legal, fundamental or statutory rights as alleged. 10. The next argument of learned counsel that 6-B category (x) of the Statute governing admissions in unambiguous terms/unequivocal terms provides the reservation for handicapped candidate, therefore, relaxation in qualifying marks on the analogy of SC/ST categories was to be provided to the handicapped candidates for selection to undergo the course. Not doing so, discloses glaring case of hostile discrimination. The contention of respondents is that reservation to handicapped category has been provided with minimum benchmarks, i.e., 30%, which the petitioner has failed to secure and, therefore, petitioner has no right to maintain the present writ petition. 11. On 31.07.2015, when notice was issued respondents were directed to keep reserved one seat in the Department of Sociology. 12. During the course of arguments, when specific query was put to learned counsel appearing for University as to whether there was any rationale or basis on record while not providing reservation to handicapped category as compared to SC/ST categories, except accepting this was the position not only in this University but also in some other educational institutions as well, no plausible answer muchless justification was given. Umbrage of "Policy Decision" was taken, contending that the Courts should not interfere with such policy decision of the academic institutions. The focus of the issue, however, has to be different. No doubt, the Courts are not to interfere with the policy decision of the Government and especially, educational institutions moreso, in those cases where the experts have deliberated on such issues and have taken conscious decision. The focus of the issue, however, has to be different. No doubt, the Courts are not to interfere with the policy decision of the Government and especially, educational institutions moreso, in those cases where the experts have deliberated on such issues and have taken conscious decision. However, limited inquiry is still permissible. It is within the powers of the Courts to undertake the exercise of ascertaining as to whether such a policy decision is arbitrary or discriminatory or offends Equality Clause contained in Article 14 of the Constitution of India or is without application of mind. This Court examined the matter from this angle. 13. It is, thus, recognized that without imparting proper education to persons suffering from disabilities, there cannot be any meaningful enforcement of their rights under the Act of the Constitution. Realizing this, the Government has taken certain initiative and adopted certain measures to fulfill its statutory and constitutional obligations. The Disability Act places responsibility on the society to make adjustments for disabled people so that they overcome various practical, psychological and social hurdles created by their disability. The Act places disabled people at par with other citizens of India in respect of education, vocational training and employment. 14. All the aforesaid clinchingly demonstrates that the people suffering from disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandate, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates. 15. In the present case, petitioner is only seeking admission for further studies. Perusal of 6-B (x) Statute governing admissions in unambiguous terms provides reservation for handicapped candidate, therefore, the same is required to be adhered to by providing relaxation in qualifying marks on the analogy and principle of SC/ST categories. 16. Learned counsel further submits that similar controversy has arisen before the Hon'ble Supreme Court of India in case titled All Kerala Parents Association v. State of Kerala reported in 2002 (7) Scale 198, where their Lordships while dealing on the issue has held in paragraph No. 3 as under:- "3. The aforesaid Section 39 unequivocally deals with the question of reservation of seats for persons with disabilities in educational institutions of the Government, as well as institutions receiving aid from the Government. The language is clear and unambiguous, which itself indicates the legislative intent. The aforesaid Section 39 unequivocally deals with the question of reservation of seats for persons with disabilities in educational institutions of the Government, as well as institutions receiving aid from the Government. The language is clear and unambiguous, which itself indicates the legislative intent. It is well settled that when the language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out the meaning of the statute inasmuch as the language used by the Legislature is the indication of the legislative intent. We fail to understand as to how and on what principles of construction the High Court has given a construction to the provisions of Section 39 not only by doing violence to language of Section 39, but also rewriting the provisions of Section 39. If Section 39, as has been construed by the High Court, would be interpreted to mean it relates to employment merely because the provision occurs in the Chapter VI dealing with employment then the "educational institutions" would have to be interpreted to mean the Government post and the question of receiving aid from the Government would not arise at all. Natural and ordinary meaning of words should not be departed from unless it can be shown that legal context in which the words are used requires a different meaning. We have therefore no hesitation to come to the conclusion that the High Court was wholly in error in construing Section 39 of the Act to mean it relates to reservation in Government employment and not in relation to admission of students with disabilities in the Government institutions as well as educational institutions receiving aid from the Government. Further, reservation in Government employment is provided under Section 33 of the Act. We, therefore, set aside the impugned judgment of the Kerala High Court and hold that Section 39 deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with." 17. We, therefore, set aside the impugned judgment of the Kerala High Court and hold that Section 39 deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with." 17. Viewed thus, since, one seat has been kept reserved in the Department of Sociology vide order dated 31.07.2015 and respondents have not selected any other candidate in the reserved category, as such, it would be appropriate to direct the respondents to consider the claim of the petitioner against the said reserved seat to undergo the Master's Degree in Sociology while providing same relaxation as has been provided to other categories with respect to the qualifying marks. Disposed of as above along with connected MP(s).