PARUL JHUNJHUNWALA Vs. UNIVERSITY OF DELHI

JUDGEMENT

(1.) The creation of reservations inveterately throws up conundrums of myriad hues and complexions, as in this Petition. The Petitioners' claim that they are physically handicapped, and therefore entitled to the advantages envisaged in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Disabilities Act for short). The primary assault is on the decision of the Delhi University to extend this statutory benefit only to the extent of one per cent (1%) to candidates suffering from locomotor (sic. locomotory) disability. The two provisions of the Disabilities Act referred to by the Respondents are reproduced for facility of reference.

(2.) Both these provisions are unwittingly placed in the same fasciculus of the Disabilities Act, namely Chapter VI, titled `Employment'. Owing to this placement in the statute, this Court and the Calcutta High Court favoured diametrically opposite interpretations on the issue of whether Section 39 applies only to "Employment" or encompasses reservations even to seats in educational institutions. This dichotomy was removed by the Hon'ble Supreme Court by two decisions; firstly on 11.9.2003 in Civil Appeal No.6120/2001 titled as All India Parents Association Hearing Impaired Versus State of Kerala and thereafter 18.9.2002 in Civil Appeal No.4604 of 2000 titled as Deputy Secretary, Department of Health Versus Soachita Biswas. These two different Benches of the Apex Court, presided ever by Hon'ble Justice G.B.Pattaniaik (as his Lordship then was), have pronounced that Section 39 of the Disabilities Act applies to admission of students in educational institutions and this issue is no longer res integra. Observing that the language was clear and unambiguous and explicitly indicative of the legislative intent, the Hon'ble Court inter alia spoke thus:-

(3.) Whilst this controversy, centered on Section 39 of the Disabilities Act, has been set at rest, Section 33 has now created continued debate on the manner in which the reservation set apart for disabled candidates is to be implemented. The Medical Council of India (MCI) has maintained that it is impracticable for persons falling in the first two categories of Section 33, (namely (i) blindness or low vision or (ii) hearing impairment) to effectively assimilate, absorb and imbibe medical teaching. The MCI, which enjoys statutory status, has issued instructions to all medical educational institutions not to grant any reservations to persons falling in these two categories, and these are being ubiquitously adhered to. In response to my query to Mr. Maninder Singh, learned counsel for the MCI, as to whether this prohibition applies even to those physically handicapped students who had become eligible for admission on outright merit, he has been bold to state that so far as the MCI is concerned, it would extend its recommendation even to such candidates. There is, however, no empirical evidence of such enforcement, and all the learned counsel have stated in unison that they are not aware of any case where such instructions have been enforced by any College and has resulted in the doors of the Courts being knocked on. In none of the Petitions before me has this policy of declining reservations to the blind and deaf been assailed. I need not, therefore, cogitate upon this legal nodus. It would not be too sanguine to expect that this policy would soon be laid siege to, since its logical imperfection has been obliquely exposed in Dr.Raman Khanna's Petition.