In the High Court of Kerala
W.A. Nos. 3660 and 3661 of 2001 and O.P. No. 18683 of 2001
Benny had a physical handicap of 60% as a result of polio. Despite the handicap, he graduated in Medicine from the Calicut University in 1994. On December 5, 1995 he was registered with the Medical Council.
In April 2001, Benny applied for a postgraduate course in the open category, as there was no published reservation in the prospectus. But in June 2001, Benny registered his protest regarding this injustice under Article 226 of the Constitution complaining that the State Government had failed to carry out its statutory obligation under the provisions of the 1995 Act. He appealed for a modification of the prospectus to include the mandatory 3% reservation for the physically handicapped and requested his case to be reconsidered.
The judge relying on the decision of a Division Bench in State of Kerala v. Mary Joseph (2001 (3) KLT 26) dismissed the writ petition.
Aggrieved by the order of the learned single Judge, the writ petitioner filed the appeal. When the matter was posted before a Division Bench, reference was made to the decision in Mary Joseph’s case. This view was challenged.
The Issue
Has the State Government acted in violation of Section 39 in refusing to make reservation for the handicapped persons for admission to the Post Graduate Degree/Diploma Courses in different specialties of Medicine and Surgery?
Lets review the facts and figures:
- A perusal of the prospectus shows that the total number of seats available in all the five colleges for admission to Degree Courses is 186. Total number of seats available for Diploma Courses is 143. On this basis, it is claimed that 3% of the 329 seats viz. at least 10 seats should be allotted to physically handicapped candidates.
- According to the Act, in specific circumstances an establishment could be exempted from the provisions of section 33, which refers to reservations in jobs. The Government is obligated by the clauses under the PWD Act to identify the categories of posts against which persons with different disabilities can be appointed. In the case of departments where appointment of disabled persons is difficult, the Government has the power to grant an exemption.
When the number of seats are very few in number and when the course is of a super specialization, the question arises Can the Government be still compelled to make reservation of at least 3% seats?
Each Specialty constitutes a separate category. The number of seats in each Specialty is low. Reservation of even one seat would exceed the prescribed percentage. It would lead to reservation of more than 3% to 100%. To illustrate: There is only one seat at Medical College at Alapuzha. If it is reserved, it would amount to 100% reservation. This would not be in conformity with the provisions of Section 39. Still further, even if it is assumed that the pooling of seats is permissible, the reservation of 3% shall not be workable. Still further, the stipulation in Section 33 has also to be kept in view. Both the provisions have to be harmonised. Otherwise, the reservation of seats in Schools and Colleges would not lead to the fulfillment of the object of helping the handicapped persons to get settled in life.
In response to the suggestion that a reservation be provided in the discipline of General Medicine where were a total of 26 seats it was ruled against reservation of one seat out of 26 would be in excess of the percentage prescribed under the provisions of Section 39. Since such reservation would not be in strict conformity with the provisions of the statute, no command forcing the Government could be issued.
Further, it was pointed out that the clubbing together of the seats across the country could not be done as each Specialty constitutes a separate unit. It was also pointed out that considerations of efficiency and merit should be kept in view. Each medical student at the Post Graduate level costs a substantial amount of money. Admission is given to the meritorious so that public funds are spent on the deserving. Persons with handicaps even if imparted the training may not be in a position to fully carry out all the onerous duties expected of medical officers with postgraduate qualifications.
The Judgment
It was decided that the plea taken on behalf of the respondents did not appear to be unfair or arbitrary. Further, in matters of policy, the courts normally do not intervene. To be explored further the matter would have to taken up by the competent authority after examining the factual position.
The case was dismissed.
Decided on:
30th January 2003
Cases Referred:
State of Kerala v. Mary Joseph, 2001 (3) KLT 26;
All Kerala Parents Association v. State of Kerala, 2002 (3) KLT 423 (SC);
P.G. Institute of Medical Education & Research v. Faculty Association, AIR 1998 SC 1767;
Dr. Preeti Srivastava v. State of Madhya Pradesh, AIR 1999 SC 2895.
State of Kerala v. Mary Joseph
(2001 (3) KLT 26)
In Mary Joseph’s case, the Bench had ruled that Section 39 appeared in Chapter 6 of the Act. This Chapter primarily deals with employment. Thus, the reservation for the physically handicapped had to be made only at the time of recruitment. No provision for reservation was required to be made under Section 39 for the purpose of admission to Government or aided educational institutions. The fact, which deserves mention here is that, this view was taken despite the fact that Section 39 specifically provided for reservation in “all Government educational institutions and other educational institutions receiving aid from the Government…”