RAKHI MANGAL Vs. STATE OF M. P.

JUDGEMENT

(1.) THE petitioner is a person with disability and has filed this writ petition under Art.226 of the Constitution challenging the provisions of R.1.8 (4) and R.1.20(11) of the Madhya Pradesh Medical Dental Post Graduate Course Entrance Examination Rules, 2008 (for short 'the R.2008') made under S.10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973.

(2.) THE facts relevant for disposal of the petition briefly are that the State Government made the Rules, 2008 for admissions to the Post Graduate Medical (M. D. and M. S.) course, Post Graduate Diploma and Dental (MDS) course in Medical and Dental Colleges in the State of Madhya Pradesh. R.1.8 of the Rules, 2008 provides for reservation and sub-rule (4) of R.1.8 provides that 3% seats are reserved for admission to Post Graduate courses for physically handicapped persons who are bona fide residents of Madhya Pradesh and belong to ST, SC, OBC and Unreserved categories and that such reservation will be horizontal. R.1.19 of the Rules, 2008 is titled as "Merit List" and sub-rule (1) of R.1.19 provides that the merit list will consist of the number of candidates equal to the number of seats available for allotment in State quota and separate merit list will be prepared for in - service and non service (open) candidates. R.1.20 of the Rules, 2008 provides for counselling and sub-rule (11) of R.1.20 provides for counselling for non - service candidates in the following sequence :

(3.) MR . Rajendra Shrivastava, learned counsel appearing for the petitioner, submitted that S.39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (for short 'the Act of 1995') 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 persons with disabilities. He submitted that reservation for physically handicapped persons therefore will have to be vertical and not horizontal and the provision in R. 1.8(4) of the Rules, 2008 that such reservation for physically handicapped persons will be horizontal is ultra vires. In support of his contention, he cited the decision of Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar, AIR 2007 SC 3136. He further submitted that by not indicating in the tables 1, 3 and 5 annexed to the Rules, 2008 the seats in Post - Graduate Degree and Post - Graduate Diploma courses reserved for physically handicapped persons, the rule making authority has violated S. 39 of the Act of 1995 as well as Art. 14 of the Constitution because the residual seats which are not opted for by the SC, ST, OBC and UR candidates will be left for physically handicapped SC, ST, OBC and UR candidates and the physically handicapped candidates will be forced to take seats in courses which no other candidates opt for.