HALLIN JACOB K Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a physically challenged person. She took the Entrance Examination for the Professional Degree Courses for the year 2004. Her rank in the Entrance Examination was 21352. She is a person suffering from 52% physical disability. So, she claimed reservation as a physically challenged person, in the light of the relevant clauses contained in Ext. P1 prospectus. The total number of seats available for the M.B.B.S. Course in Government/Aided Colleges in the State is 700. According to the petitioner, she has been ranked as 33 among the physically handicapped persons. But, several persons ranked above her, were found not suitable for admission to the M.B.B.S. Course, by the Committee of Medical Experts, constituted for evaluating the disability. Therefore, her rank has come upto 17. S.39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act") 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 physically handicapped persons. Therefore, for the M.B.B.S. Course, twenty one seats should be reserved for physically handicapped persons and if that be so, the petitioner, being the seventeenth person among the physically handicapped persons, is eligible to get admission to the M.B.B.S. Course. But, she has been offered admission only for the B.D.S. Course. According to the respondents, only sixteen seats are available to the physically handicapped persons for the M.B.B.S. Course and the petitioner, being the seventeenth candidate, is eligible to get admission only to the B.D.S. Course. So, this Writ Petition is filed seeking a direction to the respondents to allot a seat for the M.B.B.S. Course in one of the Medical Colleges, to the petitioner, under the quota set apart for physically handicapped candidates. Other incidental reliefs are also sought.

(2.) THE learned Government Pleader appearing for the respondents produced before this Court the instructions, received by him from the second respondent. According to the said instructions, the Government have to set apart 105 seats for All India Quota, 29 seats for the special nominees of Union of India and 32 seats for special reservation, which include the quota for Ex service man, N.C.C., Kalathilakam, etc. The total of the above seats will come to 166. Only 534 seats are remaining for allotment by the State Government. Three percent of 534 will come to 16.2, which is rounded as 16. Therefore, the petitioner is not eligible to be admitted to the M.B.B.S. Course. In view of the above position, it is submitted that the petitioner is eligible to get admission only to the B.D.S. Course.

(3.) S .39 of the Act reads as follows: "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". The Act in question, is a plenary legislation. The above quoted provision is mandatory and all Government educational institutions and aided institutions are absolutely bound by the said provision. Going by the above said provision, the percentage should be reckoned, with reference to the total number of seats available in the educational institutions. The contention of the respondent is that the three per cent can be reckoned, only after excluding the seats to be set apart for allotment to other quotas. The said approach appears to be perverse. I feel that the seats to be set apart for the physically handicapped persons should be fixed first, in the light of the statutory mandate. Having regard to the statutory provisions, the Scheme of the Act is to eliminate discrimination against the physically handicapped persons. The objects and reasons of the Act read as follows: