A MOHAMMED YASIN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) PETITIONER seeks issuance of writ of certiorarified mandamus or any other appropriate writ, order or direction in the nature of a writ, calling for the records of respondents ending with the order of 4th respondent in Letter No.Peea/Ph/TNEA 98, dated 23.7.1998 and quash the same, and direct the respondents herein to forthwith re-allot the petitioner herein to undergo First Year Engineering Course in Computer Science in any one of the Government Colleges under the control of 2nd respondent herein, and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case.

(2.) PETITIONER is an or thopaedicaly physically handicapped person. Both his legs are affected by post-polio paralysis. The extent of disability is 60%. It is said that the direction of Artificial Limb Centre, K.K.Nagar, Government of Tamil Nadu Hospital, has issued a medical certificate, certifying that he is an orthopadically physically handicapped and eligible to be considered for admission to engineering colleges/technical institutions in his certificate dated 5.6.1997. It is said that during 1997 petitioner applied for admission to B.E. Degree course, and he was also selected under physically handicapped quota. But he could not get the subject of his choice, viz., computer science. So, he did not join during 1997-98. In the meantime, he attended plus two examination for improvement of marks, and again applied for admission to B.E. course for the present Academic year under physically handicapped quota. He has secured 256-98 marks in the qualifying examination conducted for the B.E. Degree courses by the respondents. Even then he was not given admission under physically handicapped quota though he should have been included as Sl.No.9. But under the General Open competition Quota, he was allotted to 5th respondent-college. Even though the Director of Artificial Limb Centre, K.K.Nagar, Chennai has issued a certificate that petitioner is physically handicapped and fit to be admitted to Engineering Course, 4th respondent has by communication dated 8.7.1998, directed the petitioner to appear before a committee constituted by respondents, to verify and assess the degree of his physical handicap. Accordingly, petitioner appeared before the committee on 13.7.1998. PETITIONER was not selected under the physically Handicapped quota. PETITIONER issued a notice to the respondents to include his name under the said quota, for which 4th respondent has sent a reply on 23.7.1998 that petitioner could not be included in the list of physically handicapped persons as he was outside the range as assessed by team of physicians already prescribed. It is said that for the previous year, he was included in the quota, and there cannot be any change in his disability. It is also said that under the Disabilities (Equally Opportunities, Protection of Rights and Full Participation) Act, 1996 (Central Act 1 of 1996), Government educational institution and other educational institutions receiving aids from the Government shall reserve not less than 3% seats for persons with disabilities. Contrary to Sec.39 of the said Act, respondents reserved only 80 seats for the physically handicapped persons out of 23,000 seats. This according to the petitioner, is a negation of legal rights, and if the entire 3% was included, petitioner also would have been admitted. It is also said that in the prospectus, it is mentioned that the eligibility will have to be considered only on the basis of certificate issued, and there is no indication that a committee will be formed to assess the handicap. It is said that the prospectus binds both the candidate and the selection committee, and respondents cannot have a separate selection procedure by constituting a committee. According to writ petitioner, the rejection of his claim is arbitrary, illegal and the same is illegal to be quashed, and he must be allotted a seat under the physical handicapped quota.

(3.) THE Guidelines, dated 6.8.1986 says about concessions or facilities to disabled persons. THEy read thus: "Concessions/Facilities which may be offered to disabled persons: Keeping in view the set of definitions and the categorisation being recommended, various Ministries, Departments and the State Governments shall have to also specify the facilities and concessions which would be available to different categories of the handicapped. THE Committee recommends that if a person has the degree of disability below 40% in a particular category, no such benefits/concessions may be given to such a person. All other categories may be extended concessions/facilities like scholarships, job" reservation, aids and appliances either free of cost or at concessional rates, conveyance allowance, etc. For hearing handicapped, the committee recommends that 3 language formula may be revised so that the hearing handicapped have to study one language only. Ministry of Social and Women's Welfare may make out proposals based on these recommendations with the appropriate Ministry for necessary modifications n the Policy of 3 languages formula. THE Committee also recommended that Ministry of Health and Family Welfare may also take up amending medical standards for necessary relaxations in respect of mild handicapped in all the categories so that on account of their mild disability, they are not put in a position that neither they are able to get the facility of job reservations nor are eligible otherwise for entering into services in the general category. THE Medical Rules may also indicate in clear terms that loss of one eye will not be considered a disqualification unless the particular post is of such a technical nature that it requires of a person the use of both the eyes of three-dimensional vision. THE same Medical Board at the district level may examine suitability or otherwise of a one-eyed person for a particular post. THE degree and extent of disability of the 3 types, namely, visual hearing and orthopedic will be indicated as follows: (a) Mild ". less than 40 per cent (b) Moderate ". 40 per cent and above (c) Severe ". 75 per cent and above. (d) Profound/Total 100 per cent. For persons suffering from cardo pulmonary diseases, there may be no reservations in jobs. "THEse persons may, however, be considered for extending other concessions such as exemption in typing, etc. THE Director-General of Healthy Services, Ministry of Health and Family Welfare will be the final authority, should there arise any controversy doubt regarding the interpretation of the definitions/classifications/evaluation tests, etc. Only those persons who have disability more than 40 per cent and above shall be eligible for registration in Employment Exchange in the category of handicapped and considered against jobs in public sector reserved for the physically handicapped." Regarding the question as to how the physical incapacity should be evaluated also, Guidelines have been given. On the basis of these Guidelines, the case of the petitioner herein should have been considered more sympathetically than rejecting his claim only on the ground that the Central and State Governments have not established their Committees, and also on the ground that there is no infrastructure in the Institution for admitting students like the petitioner herein. Lack of infrastructure facility is now taken as a ground for denying admission to the petitioner. I do not think that the selection procedure adopted by the Selection Committee, at least so far as the petitioner herein is concerned, was proper.