NAWAL KISHOR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State.

(2.) Petitioner, who suffered post-polio deformity of right upper limb with loss of power of right shoulder leading to loss of function of right hand, appeared in the Bihar Combined Entrance Competitive Examination, 2004 (hereinafter referred to as the "B.C.E.C.E., 2004), duly conducted by the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as the "Board") was called to appear in the counselling on the basis of his merit serial of P.C.M.: DQ.ST-2, has filed this writ application assailing the order bearing No. 649/ 2004 dated 27.8.2004, Annexure-7, issued under the signature of the Controller of Examination of the Board, whereunder he has been refused admission in any of the Engineering stream on the ground that his right hand is completely non-functional and he is unable to pursue his studies in any of the Engineering stream as provided in paragraph 14.5.2 of the prospectus issued by the Board for conducting B.C.E.C.E., 2004.

(3.) It is submitted on behalf of the petitioner that post-polio deformity of right upper limb, as has been certified by the medical authorities, which is evident from the certificate issued by the Professor & Head of the Department of Orthopaedics, Jawaharlal Nehru Medical College & Hospital, Bhagalpur and Civil Surgeon-cum-Chief Medical Officer, Bhagalpur dated 28.10.1998 and 16.8.2004, as contained in Annexures-1 and 6 to this application indicates that petitioner can be considered for admission in any of the Engineering course in view of his merit serial of PCM: DQ.ST-2 but the Controller of Examination of the Board has arbitrarily refused such admission under the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7, which should be quashed on the ground of being arbitrary and violative of Article 14 of the Constitution of India as also the provisions contained in Sec.39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the "Act"), which mandate all educational institutions to reserve seats not less than three per cent for persons with disabilities. It is further submitted on his behalf that reference of Clause 14.5.2 of the prospectus in the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7 is wholly misplaced as till date of issue of the impugned order, Annexure-7 the authorities had not finalized guidelines for evaluation and assessment of various disabilities which would entitle any of the disabled candidate for admission under the disabled category and thus the impugned order bearing No. 649/2004 dated 27.8.2004, Annexure-7, is required to be set aside on that ground alone.