Three percent Reservation Mandatory

The Secretary, Educational Department, Goverment of Tamil Nadu, The Director of Medical Education and the Directorate of Medical Education vs. Master J. Rajkumar (Minor) rep. by his father and natural Guardian, D Joseph

Filed Under: Section 39, Persons with Disabilities Act, 1995 Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes Act, 1993, Article 14, Constitution of India
Appellant: The Secretary, Educational Department, Goverment of Tamil Nadu The Director of Medical Education and the Directorate of Medical Education
Respondent: Master J. Rajkumar (Minor) rep. by his father and natural Guardian, D Joseph
Citation: MANU/TN/0652/2003, Decided on 30.04.2003(unreported)
Court: In the High Court of Madras
Judges: B Subhashan Reddy and D Murgesan

Facts

J. Rajkumar was a minor represented by his father and had 50% disability because of a polio attack that he had during his childhood. He appeared in an entrance examination conducted for the Medical/BDS courses. He secured 285.37 out of 300 marks but could not get admission in the Open Category.

Only three seats had been earmarked for the disabled in the M.B.B.S course. Rajkumar obtained fifth rank in that category and was therefore denied admission to the course. He was however offered a seat in the BDS in the payment category. Distressed by this, he filed a petition before a Single Judge in the High Court.

The Single Judge allowed his petition and held that Rajkumar was entitled for a seat according to Section 39 of the Persons with Disabilities Act. The Department of Education, Tamil Nadu Government then filed the present appeal challenging the order of the Single Judge.

Arguments on behalf of the Department:

The Special Government Pleader on behalf of the Educational Department put forth the following arguments:
  • Firstly, it was contended that the State had already enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes Act and because of that, there was no scope for implementing the Disabilities Act enacted by the Central Government by providing further reservations for the Disabled candidates

  • Secondly, the lawyer stated that the Act was not mandatory; it was only providing a direction

  • Thirdly, it was not possible to provide 3% reservation for the disabled and the three seats that had been reserved for the physically handicapped individuals were enough for them

  • Finally, the vacancies had been filled and the classes had begun long before the Single Judge had passed the order
Based on these facts it was contended that the order passed by the Single Judge should be set aside and the present petition be allowed.

Arguments on behalf of Rajkumar:

Rajkumar's lawyer contended that according to Section 39 of the Act, the Education Department should have kept 3% seats in the reserved category out of 1,225 and held that 39 seats confirming to the 3% reservation must be provided instead of keeping only 3 seats reserved for the disabled. The lawyer also referred to relevant previous cases to support his arguments.

Observations of the Court

The Court examined the relevant sections of the Act along with a previous judgment passed by the Supreme Court. On the basis of that, the Court held that the provisions of the Act were mandatory and the State was bound to follow them. The Court also dismissed the argument given by the Special Government Pleader that the order for reservation was not applicable, as the academic session had already begun.

The Court fully agreed with the judgment passed by the Single Judge and accordingly dismissed the appeal. The Court directed the Government of Tamil Nadu to issue notifications to the concerned authorities to follow the rule of reservation of 3% of the seats for the disabled in all Governmental Educational Institutions including those educational institutions that were running with the aid from the Government.

Sections Referred:

  • Section 39, Persons with Disabilities Act, 1995

Cases Referred:

  • Indira Sawhney vs. Union of India, AIR 1993 SC 477
  • Javed Abidi vs. Union of India, (1999) 1 SCC 467

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Jitender Pal Kaur vs. State of Rajasthan and Ors

Filed Under: Article 226 of the Constitution of India, 1950
Appellant: Jitender Pal Kaur
Respondent: State of Rajasthan and Ors.
Citation: MANU/RH/0160/2001.Decided on 27.11.2000 (Unreported)
Court: In the High Court of Rajasthan
Judge: B.J. Shethna

Jitender Pal Kaur filed this writ petition challenging the action of the University of Rajasthan in not reserving 3% seats for the physically disabled persons.

Facts

Jitender Pal Kaur was 18 and disabled. She had passed her Senior Higher Secondary Examination and had applied for the PMT/PVT Test conducted by the University of Rajasthan for admission to a Medical College. She had taken the written examination and the result showed that she was 2nd on the waiting list for disabled candidates.

She then filed the present appeal claiming that the University had not reserved 3% seats for the disabled candidates according to the mandates of the Persons with Disabilities Act. The University had provided reservation for only 2 seats. Her contention was that there were 600 seats and accordingly 18 seats should have been reserved for the disabled people.

The lawyer on behalf of the State of Rajasthan made two main arguments. Firstly, he contended that the University of Rajasthan was not a party and therefore the petition should be dismissed. Secondly, it was contended that since the process of giving admission was already over no such relief could be granted to her.

Observations of the Court

According to the Court, both the arguments extended by the lawyer on behalf of the State of Rajasthan had no merit. The lawyer on behalf of the State of Rajasthan had contended that the result for admission to the Medical College had been declared and the admission process was over long back.

The Court held that this argument did not have any merit since it was the mistake of the University in not granting admission to Jitender. The Court further observed that 34 seats were still vacant and therefore she could be granted admission in the current academic year.

The Court further contended that the University was bound to implement the provisions of the Act and therefore should have reserved 3% of the total seats for the disabled candidates.

In view of the above discussion, the Court allowed the writ petition. The Universities of the State including the University of Rajasthan were directed to amend their ordinance and provide 3% reservation for disabled candidates. The Court also directed the Universities to implement the directions as soon as possible.

Sections Referred:

  • Article 226 of the Constitution of India,

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The Deputy Secretary (Mart), Department of Health and Family Welfare vs. Miss Sanchita Biswas and Ors

Filed under: Section 39 of the Persons with Disabilities Act, 1995 Articles 15(4), 226 and 256 of the Constitution of India
Appellant: The Deputy Secretary (Mart), Dept. of Health and Family Welfare
Respondents: Miss Sanchita Biswas and Ors.
Citation: AIR 2000 Cal 202
Court: In the High Court of Calcutta
Judges: Ruma Pal and S. N. Bhattacharjee

Facts

Miss Sanchita Biswas, a physically handicapped candidate appeared in the Joint Entrance Examination of 1997 for admission to Medical Colleges but was unsuccessful.

For admission into the medical colleges, some seats were reserved for nominees of the Government of India, the State Government, Donors, Schedule Caste and Schedule Tribes. After the examination was over the Government also reserved some seats for hill candidates. However, no seats were reserved for disabled candidates.

Sanchita filed a Writ petition challenging the reservation of seats for the hill candidates, donor's nominees and also challenged the non-reservation of seats for the physically handicapped candidates despite statutory requirements as being violative of Articles 14, 15, 21 & 41 of the Constitution of India.

The Judge partly allowed the petition by setting aside the reservation for candidates residing in the hill region of the State of West Bengal. Further, the Government of West Bengal was directed to reserve 3% seats for physically handicapped candidates.

The Government of West Bengal filed the present Appeal challenging the judgment passed by the Single Judge.

Arguments on behalf of the Department of Health and Family Welfare

Arguments on behalf of the Department of Health and Family Welfare were made on the following grounds:
  1. The provisions of the Constitution of India do not impose any obligation on the State to reserve seats for the physically handicapped persons.

  2. The reservation of seats for hill candidates was taken by the Government taking into consideration the place of birth of people residing in hilly regions implementing the recommendations of the Minority Commission.

  3. They further stated that Sanchita had participated in the JEE with full knowledge that there was no reservation for the physically handicapped candidates. Therefore, she could not be allowed to challenge the selection process after being unsuccessful.
Further, it was argued that the nature of the job to be performed by a medical practitioner does not warrant for such reservations, as handicapped candidates are medically unfit and the State government without the approval of the medical council cannot provide for such reservation of seats in medical colleges.

Observations of the Court

Taking into view the various provisions of the Constitution and the Persons with Disabilities Act, the Court concluded that the Constitution and the Act cast an obligation upon the state to provide for reservation of seats for handicapped candidates to the extent of 3% of the total seats in educational institutions like medical colleges.

With regard to the contention that the reservation for hill council has been made after taking into account various considerations, the Court observed that no official records were produced before the Court and no objectives were shown for making such a reservation. Further, after referring to some of the earlier cases, the Court opined that Sanchita's right bestowed to her under the Constitution was violated.

In response to the argument that reservation to the hill candidates was also provided on the ground that on securing medical degrees would cater to the needs of the hill people for medical treatment as per the recommendations of the Minority Commission, the Judge pointed out that no such report was placed before him and held the reservation policy for the hill candidates arbitrary.

Further, on the point that Sanchita could not be allowed to challenge the reservation policy after taking up the examination the Court observed that there was a space to indicate whether the candidate was physically handicapped or not with the hope that some protective leniency would be given to her.

However, the JEE failed to make any reservations for the physically handicapped. Therefore, she could not be debarred from challenging it. Due to these reasons all the arguments made on behalf of the Department of Heath were rejected by the Court and declined to interfere with the findings of the lower Court and dismissed the appeal.

Held: All contentions on the behalf of the Department of Health were rejected by the Court and the Appeal was dismissed.

Sections referred:

  • Section 39 of the Persons with Disabilities Act, 1995
  • Articles 15(4), 226 and 256 of the Constitution of India

Cases Referred:

  • Air India Statutory vs. United Labour Union, (1997) 9 SCC 377: AIR 1997 SC 645
  • Dwarka vs. ITO, AIR 1966 SC 81
  • Mafatlal Industries Ltd vs. Union of India, (1997) 5 SCC 536
  • A Janardana vs. Union of India, (1983) 3 SCC 601: AIR 1983 SC 769

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Dr. Vijay K Agarwal vs. State of Rajasthan and others

Filed under: Section 39 of the Persons with Disabilities Act, 1995 Section 30 of the University of Rajasthan Act (1946)
Appellant: Dr. Vijay K Agarwal
Respondents: State of Rajasthan and others
Citation: AIR 2001 Rajasthan 261
Court: In the High Court of Rajasthan
Judges: RR Yadav

Facts

Vijay K Agarwal was an orthopedically handicapped person who was doing MBBS from the University of Rajasthan. At the time of admission, he was admitted under the physically handicapped category since there was reservation for the physically handicapped. Vijay passed his MBBS examination and also completed his internship.

Thereafter, he applied for Pre-PG Entrance Examination. However, when the results were declared there was no reservation for the physically handicapped. He then filed this writ petition to get the benefit of reservation in the PG Medical Course.

Arguments on behalf of Vijay Kumar Agarwal

Vijay’s lawyer contended that in view of the mandatory provisions of Section 39 of the Persons with Disabilities Act, all Government educational institutions have to reserve 3% seats for persons with disabilities. It was also stated that Vijay was entitled to be admitted to the PG Medical Course within the meaning of the amended Ordinance 278-E of the University Ordinances.

Arguments on behalf of the University of Rajasthan

The lawyer appearing on behalf of the University of Rajasthan refuted these arguments. According to him a close scrutiny of the Act revealed that it was not confined to 3% reservation only, but gives an overall benefit in favor of the disabled persons.

In support of this contention the lawyer pointed out that the term “appropriate Government” mentioned in Section 2(a) of the Act referred to the fact that the Central Government was required to constitute a body to be known as Central Coordination Committee that would perform the functions assigned to it under the Act.

He further stated that Section 13 also provides that the State Governments shall constitute a body known as the State Coordination Committee that would perform the functions assigned to it under the Act.

According to the lawyer, the reservation of 3% seats for persons with disabilities in all Government Educational Institutions and other educational institutions receiving aid from Government depended on the constitution of the Central and State Coordination Committees. These committees then have to formulate schemes and programmes in this regard.

The main point of this argument was that no such scheme had been formulated with regard to the reservation. Another contention was that the amendments to the University Ordinances had been made after Vijay had filed the case and therefore he was not entitled to admission in the PG Medical course since it now became retrospective in effect.

Observations of the Court

The Court closely examined the provisions of the Act and reached the conclusion that the Parliament had conferred two kinds of benefits to people with disabilities and out of these one type of benefit was dependent on the constitution of the Co-ordination Committees while the other directly flowed from the Act and did not require the formulation of any scheme or policy by the committees.

The 3% reservation of people with disabilities in all Government and Government funded educational institutions belonged to the latter category and therefore did not require the framing of any policies and schemes.

With respect to the other argument, the Court contended that the 3% reservation for the disabled had to be made once the Act came into force. Therefore, the argument that since the amendment of the University ordinances took place after the case was filed and therefore was not applicable, had no merit.

The Court also scrutinized the University ordinances that govern the completion of the residency training. The Court observed that even if Vijay was admitted to the PG medical course at that time, i.e. after six months of the commencement of the course, his admission would not effect his final examination, which was to commence after a period of three months. Additionally, the period of three years was to be computed from the date of Vijay’s admission.

In light of these reasons the Court allowed the petition. The University of Rajasthan was mandated to admit Vijay Kumar Agarwal within three weeks from the date of the order, as a handicapped person in the PG medical course preferably in the pediatrics specialty, subject to its availability in the college.

Sections Referred:

  • Section 39 of the Persons with Disabilities Act, 1995

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Binita Senapati vs. State of Assam

Filed under:Section 39 of the Persons with Disabilities Act, 1995
Appellant: Binita Senapati
Respondents:State of Assam
Citation:2001 (3) GLT 195
Court:In the High Court of Assam
Judges:AK Patnaik

Facts

The State Government issued a notification and framed a set of rules for admission of students to the MBBS/BDS Course in the Medical Colleges of Assam and the Regional Dental College. These rules provided for reservation of seats for various categories. Initially there was no reservation for candidates with physical disability.

However, a clause was added which stated that reservation of maximum 3% seats of MBBS for people with disability subject to the fulfillment of provisions and terms, as laid down in the Persons with Disabilities Act, was mandatory.

Binita Senapati was physically handicapped as one of her lower limbs was shorter than normal. She applied for admission for a seat in one of the Medical Colleges of Assam in the category of a physically handicapped candidate. She then took the selection test and an educational notice was issued in which her name appeared. She was called for the interview.

In response to this notice, Binita attended the interview in which she took with her all her certificates. Thereafter, the Director of Medical Education, Assam, published an Admission Notice but her name was not mentioned in the list. Under these circumstances, Binita filed this Writ Petition for appropriate reliefs.

In the course of the hearing, records were produced before the Court, which showed that the three candidates who had been offered admission in the disabled category had secured more marks than Binita. The lawyer on behalf of the State argued that since the selected candidates had obtained more marks than Binita and were physically disabled as well, the order of their admission could not be quashed or set aside.

Arguments made on behalf of Binita

Binita’s lawyer on the other hand contended that under Section 39 of the Act, all Government Educational institutions were obliged to reserve not less than 3% seats for persons with disability. Since the total number of seats for the MBBS course was 310, 3% of this number would be more than 3 seats.

It was further stated that since Binita was the only candidate in the waiting list of physically handicapped persons, she was entitled to admission under Section 39 of the Act. In order to support this contention, the lawyer referred to previous judgments.

Arguments made on behalf of the State of Assam

The lawyer on behalf of the State on the other hand contended that Section 33 of the Act showed that the Government was obliged to reserve only 1% of the seats for persons suffering from locomotor disabilities or cerebral palsy.

He contended that because of this provision in Section 33 of the Act, the State Government had decided to reserve only 1% of the total 310 seats in the MBBS course in the Medical colleges of Assam.

According to the lawyer since 1% of the seats amounted to 3, only 3 seats had been allotted for the persons with locomotor disability in the Medical colleges of Assam. He argued that since Binita’s position among the physically handicapped candidates was four she was not entitled to admission in the MBBS course.

Observations of the Court

The Court examined Sections 33 and 39 of the Act. The Court held that Section 33 applied to appointments in every establishment and did not apply to educational institutions. On the other hand, Section 39 of the Act was applicable to admission seats in educational institutions.

The Court held that Rule 6(1) (k) of the 1996 rules made by the State Government provided that there shall be reservation of maximum 3% of the seats in the MBBS course for people with disabilities subject to the terms and conditions laid down by the Act.

The Court pointed out that this rule nowhere stated that only 1% of the seats in the MBBS course in the Government Medical College would be reserved for candidates who were orthopaedically handicapped.

It was only by an administrative order given by the Deputy Secretary to the Government of Assam, Health and Family Welfare Department that 1% of the seats in the Medical colleges of Assam had been reserved for the orthopaedically handicapped candidates. The Court held that this administrative order was directly contradictory to the provisions of the Act.

According to the Court, if the Government was of the view that only persons with locomotor disability could be allowed admission to the MBBS course and other persons with disabilities were not suitable to perform the duties of a doctor then the Government was obliged to reserve the entire 3% seats for physically handicapped candidates.

The Court also noted that the Chief Commissioner for Disabilities, who was a statutory authority, had also viewed that the Medical Colleges should reserve upto 3% seats for the candidates having locomotor disability rather than reducing the 3% reserved seats to 1%. 

In light of these reasons the Court held that candidates with locomotor disabilities would be entitled to the entire reserved seats for candidates with physical disabilities. Since 3% of the total 310 seats in the MBBS course in the Government colleges were more than 4, Binita was entitled to admission. 

Accordingly, the Court disposed the Writ Petition with the direction to admit Binita Senapati to one of the three Medical colleges in Assam in the MBBS course. The Court also made it clear that Binita would not be given admission to a seat reserved for other categories; instead one seat would be added in the MBBS course for the session 1999-2000 with formal approval from the Medical Council of India and the Central Government.

The Court also pointed out that since it would take some time for the authorities to obtain permission from the Medical Council of India or other appropriate authority, Binita would be allowed to attend classes in any one of the three medical colleges within one month.

Sections referred:

  • Section 39 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Punjab Engineering College, Chandigarh vs. Sanjay Gulati, AIR 1983 SC 580
  • State of Assam vs. Rajeev Dey and Ors, 1995 (III) GLT 157: AIR 1996 Gau 40

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Hailin Jacob vs. State of Kerala

Filed Under: Section 39 of the Persons with Disabilities Act, 1995
Appellant: Hailin Jacob
Respondent: State of Kerala
Citation: 2004 (3) KLT 934
Court: In the High Court of Kerala
Judges: K. Balskrishnan Nair

Facts

Hailin, a person with 52% disability took the Entrance Examination for the Professional Degree Courses for the year 2004 and got the 21352nd rank. She claimed reservation under the disability quota in the light of the relevant clauses contained in the prospectus.

The total number of seats available for MBBS Course in Government/Aided Colleges in the State was 700. According to Hailin, she was ranked 33 in the disability category.

But several persons ranked above her were found unsuitable for admission to the M.B.B.S Course by the Committee of medical experts constituted for evaluating the disability. Therefore, her rank went up to 17.

She claimed that as per Section 39 of the Act, 3% seats had to be reserved for disabled, which means 21 seats had to be reserved for MBBS in the said year and if that was the case she should have been granted admission. But she was offered only a B.D.S Course. For the same reason Hailin filed the present petition.

Arguments made on behalf of the State of Kerala

On behalf of the State, it was argued that several seats were set aside for various categories and only 534 seats were available for the State. Three percent of that would come to 16.2, which was rounded off to 16, therefore Hailin was eligible to get a seat only in BDS Course.

Observations of the Court

The Court first proceeded to deal with the seats reserved for the MBBS since the numbers were different according to different parties. It was observed that the provision for reserved seats was a mandatory one and therefore, the percentage had to be calculated according to the availability of the total seats.

The Court further examined the objects of the Act and the provisions in the prospectus, and observed that pre fixation of certain number of seats for other categories did not affect the disabled persons because they were entitled to get three percent reservation of the total number of seats.

The point of admissions being already over and that the there may not be any vacancies was also looked into. In this respect, the Court referred to the interim order passed by the Court soon after the filing of the case where a direction was issued to keep a seat aside for 2 weeks.

Therefore, any allotment made in contravention of such an order would not be accepted. It was also observed that it was unfortunate that the State and the officers who were bound to protect the interests of the less fortunate had evolved an interpretation of the provisions of the Act to favor general candidates.

Further, it was stated that the State had turned Brutus and inflicted the unkindest cut, by removing a portion of their statutorily fixed quota to the general candidates.

The Writ Petition was allowed and declared that 21 candidates from among the physically disabled persons who had been cleared by the Committee of Medcial Experts were eligible to be admitted to the M.B.B.S course and if Hailin held the 17th rank, she would be admitted to the M.B.B.S Course. This direction was given with two weeks time to implement it.

Sections Referred:

  • Section 39 of the Persons with Disabilities Act, 1995

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