Policy and Law > Judgements > Employment
Dr Raman Khanna vs University of Delhi and Others
with Ms Rekha Tyagi vs The Vice Chancellor and Others
with Parul Jhunjhunwala vs University of Delhi
In the High Court of Delhi
CW 2670/2003 with Civil Writ Nos.2912 and 4345/2003 and CM Nos. 7440 and 8658-59/2003
Decided On: 11.08.2003
Appellants: Dr. Raman Khanna
Respondent: University of Delhi and Ors.
Appellants: Miss. Rekha Tyagi
Respondent: The Vice Chancellor and Ors.
Appellants: Parul Jhunjhunwala
Respondent: University of Delhi
Vikramajit Sen, J.
For Appellant/Petitioner/Plaintiff: J.N. Dubey, Sr. Adv., Anurag Debey, Sneha Mishra, K.B. Upadhyay and Aditya Dubey, Advs. in CW 2670/2003, Pradeep Kumar Arya, Adv. in Civil Writ No. 2912/2003 and CM Nos. 8658-59/2003 and S.K. Rngta, Adv. in Civil Writ No. 4345/2003 and CM 7440/2003
For Respondents/Defendant: Maninder Singh and Abhinav Mukerji, Advs. for MCI and Mariaputham, Adv. for University of Delhi in CW 2670/2003, Mariputham and Anurag Mathur, Advs. for MCI, Maninder Singh and Abhinav Mukerji, Advs. for Respondent No. 3 and Maulik Nanavati, Adv. for Respondent No. 4 in Civil Writ No. 2912/2003 and CM Nos. 8658-59/2003, Mariaputham and Anurag Mathur, Advs. in Civil Writ No. 4345/2003 and CM 7440/2003
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2, 33, 36, 39 and 58; Civil Procedure Code (CPC) - Section 151 - Order 1, Rule 10; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 - Rules 3 and 4
Indra Sawhney etc. etc.v. Union of India and others, etc. etc. AIR 1993 SC 477
Disposition: Petition allowed
Vikramajit Sen, J.
1.The creation of reservations inveterately
throws up conundrums of myriad hues and complexions, as in this Petition. The
Petitioners' claim that they are physically handicapped, and therefore entitled
to the advantages envisaged in the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (Disabilities Act for
short). The primary assault is on the decision of the Delhi University to extend
this statutory benefit only to the extent of one per cent (1 %) to candidates
suffering from locomotor (sic. locomotory) disability. The two provisions of
the Disabilities Act referred to by the Respondents are reproduced for facility
'' 33. Reservation of posts-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
39. 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 that three per cent seats for persons with disabilities.
2. Both these provisions are unwittingly
placed in the same fasciculus of the Disabilities Act, namely Chapter VI, titled
`Employment'. Owing to this placement in the statute, this Court and the Calcutta
High Court favoured diametrically opposite interpretations on the issue of whether
Section 39 applies only to ''Employment'' or encompasses reservations even to
seats in educational institutions. This dichotomy was removed by the Hon'ble
Supreme Court by two decisions; firstly on 11.9.2003 in Civil Appeal No.6120/2001
titled as All India Parents Association Hearing Impaired Versus State of Kerala
and thereafter 18.9.2002 in Civil Appeal No.4604 of 2000 titled as Deputy Secretary,
Department of Health Versus Soachita Biswas. These two different Benches of
the Apex Court, presided ever by Hon'ble Justice G.B. Pattanaik (as his Lordship
then was), have pronounced that Section 39 of the Disabilities Act applies to
admission of students in educational institutions and this issue is no longer
res integra. Observing that the language was clear and unambiguous and explicitly
indicative of the legislative intent, the Hon'ble Court inter alia spoke thus:-
''It may be noticed that the Medical Council of India (MCI) who issues guidelines for admission to the medical courses in the country, in fact, had taken a decision on 5.11.1999 indicating that there cannot be any reservation for admission into the MBBS course and Post-Graduate Medical Course for disabled persons, as provided in Section 39 of the Act. This decision, however, appears to have been reversed by the subsequent resolution of MCI dated 5.7.2001. Under the resolution dated 5.7.2001 it has been unequivocally indicated that 3% reservation for physically handicapped persons for admission into the medical courses should be followed excluding, however, for those who are visually handicapped and hearing defects.''
3.Whilst this controversy, centered on Section 39 of the Disabilities Act, has been set at rest, Section 33 has now created continued debate on the manner in which the reservation set apart for disabled candidates is to be implemented. The Medical Council of India (MCI) has maintained that it is impracticable for persons falling in the first two categories of Section 33, (namely (i) blindness or low vision or (ii) hearing impairment) to effectively assimilate, absorb and imbibe medical teaching. The MCI, which enjoys statutory status, has issued instructions to all medical educational institutions not to grant any reservations to persons falling in these two categories, and these are being ubiquitously adhered to. In response to my query to Mr. Maninder Singh, learned counsel for the MCI, as to whether this prohibition applies even to those physically handicapped students who had become eligible for admission on outright merit, he has been bold to state that so far as the MCI is concerned, it would extend its recommendation even to such candidates. There is, however, no empirical evidence of such enforcement, and all the learned counsel have stated in unison that they are not aware of any case where such instructions have been enforce by any College and has resulted in the doors of the Courts being knocked on. In none of the Petitions before me has this policy of declining reservations to the blind and deaf been assailed. I need not, therefore, cogitate upon this legal nodus. It could not be too sanguine to expect that this policy would soon be laid siege to, since its logical imperfection has been obliquely exposed in Dr. Raman Khanna's Petition.
4. The question which has to be answered
in these petitions is whether the three per cent reservation contained in Section
39 should be distributed and exhausted amongst the third category; or since
Section 33 fragments this reservation into three categories each of which has
an equal entitlement of one per cent, whether only one per cent reservation
is to endure to the third classification of persons afflicted by locomotory
disability and that too, only of the lower limbs. As in the case of disbarment
of the blind and deaf students by the MCI, the latter has also placed an embargo
on eligibility for reservation to the disabled in the lower limbs. Dr. Khanna
who unfortunately suffers from partial locomotory problems pertaining to the
upper limits and in accordance with the wisdom of the MCI, has therefore been
declared disentitled to enjoy any preference for admission even at the post-graduate
stage has attacked the policy before this Court. These recommendations made
by the MCI are available in its Memorandum dated 5.7.2001 the relevant portions
of which read as follows:
The Council also noted that in order to have a broader view on the Sub-Committee report, the President of the Council convened a meeting of some experts on the 24th May, 2001 where the Sub-Committee went into the details with reference to the Reservation of seats in medical course for Persons with Disabilities as per the Persons with Disabilities (Equal opportunities, Protection of right and Full Participation) Act, 1995. The provisions of Section 39 of the Act were carefully studied and based on this an agreement was reached to follow 3% reservation for Physically Handicapped for admission to medical course also. The categories of people under disabilities as classified under the Act covers the following three categories:-
1. Visually Handicapped
2. Persons suffering from hearing defects
3. Physically handicapped with the locomotory disorders.
The 3% of reservation under the above 3 categories has been apportioned as 1% under each category u/s 33 of the 1995 Act. It was also noted that the Govt. of Tamil Nadu in their G.O. No. 137 dated 29.1.1990 had also fixed the same percentage of reservation for these categories for admission to MBBS/Engineering etc. courses. The Council further noted that the Sub-Committee in the same meeting had also noted that the Hon'ble High Court of Calcutta in its judgment (case No. M.A.T. No.3105 of 1998 and CA No. 7514 of 1998) had also agreed upon the apportioning of the reservation under the above three categories in respect of the posts under Government. The same logic is applied for reservation for educational institutions also and taking the guidelines adopted by the Govt. of Tamil Nadu, the Committee was of the opinion that such apportioning of reservation is both logical and sustainable in the Court of Law. The Committee has concluded that the visually handicapped is not in a position to pursue the medical course and do the internship as (sic.) vision is absolutely necessary for the study and for the practice of Medicine. The hearing impairment will interfere with the training in medical education since the process of hearing of various signs and auscultation is absolutely essential to pursue the medical training and to follow the medical practice. In view of the above observations the visually handicapped and hearing disabled should be deleted from this category and they should be considered invalid for admission in the MBBS. Among the locomotory disabled the upper limb should be functional and normal as it is required to elicit sign during clinical examination and finger movements are desired for conduct of surgical procedure. Again the feeling and the sensation are important for clinical diagnosis and the treatment and locomotory disabled involving upper limb should be considered not eligible for admission to the professional medical course. The locomotory disabled involving the lower limb is permissible but it should be with the following guidelines:-
1. If it involves only one lower limb it should have a minimum of 40 and should not exceed 60%
2. If it involves both the lower limbs the total disability should not exceed 60% with a minimum of 40%.
The Disability certificate should be produced by a duly constituted and authorised Medical Board.
The candidates should have minimum eligibility, criteria a per MCI guidelines. The candidates should be otherwise fit medically. Those candidates who are aspiring to get seats under this reservation category should apply specifically along with the valid disability certificate. In case there are not enough number of candidates who qualify themselves for such number of reserved seats the remaining seats should be merged with the respective category of existing reservation.''
5. Dr. Khanna's case is of empirical significance since he has been suffering from partial locomotory disorder of the upper limbs at least since 1990 but more likely from much earlier. This disability was not noticed earlier because of his entry to MBBS on open merit. The fact that he has graduated and has undergone internship, exposes a possible flaw the MCI's stance pertaining to his disability.
6. In connection with some of the
other issues that have been argued before me, the following passages from the
MCI Guidelines issued as recently as on 14.7.2003, pursuant to decision taken
by its Executive Committee at its Meeting held on 30.6.2003, are so germane
that they justify reproduction verbatim:
''Thus, the following questions were considered by the Executive Committee:-
1) Whether the guidelines of the MCI providing for locomotory disability of lower limbs between 40% to 60% applies to admissions in MBBS only or it also applies to the PG Medicine course?
2) Whether for ensuing that reservation in admission in medicine courses is made available to deserving candidates, should there be a modification in the stipulation laid down by the Council in its guidelines i.e., there should be locomotory disability of lower limbs between 40% to 60%? and
3) For determining the disability thereby entitling admission in the reserved medicine seats for disabled persons, which authority should issue certificate and the time at which the disability certificate is issued?
With reference to the second question mentioned above, the Committee decided that the stipulation of locomotory disability of lower limbs between 40% to 60% be amended/modified to 50% to 70% in place of 40% to 60%. It was further decided that it had never been the decision of the Council that the existing stipulation of locomotory disability of lower limbs between 40% to 60% is to be applied only for MBBS course and not to all medicine courses including the Postgraduate Medical courses. As such, the committee came to the conclusion that the communication dated 29.04.2003 issued by the Deputy Secretary of the Council in the case of Raman Khanna appears to be on some bonafide mistaken impression and is inadvertent. The Committee decided to withdraw that communication dated 29.4.2003 and the same stands withdrawn and nullified. The committee reiterated that it is only persons with locomotory disability of lower limbs between 50% to 70% should be allowed the benefit of reservation under the Disability Act for admission in the medicine courses. This condition shall apply to admission in all medicine courses for reserved seats.
The Committee also decided that besides and in addition to any other medical certificate, the candidate for seeking the benefit of reservation, as stated above, should present him/herself before a Medical Board comprising of at least one Expert/Specialist from the specialty of Orthopedics of a Central government Hospital/Medical institution in Delhi and Union Territories and from State Medical Boards in the Stats and obtain a valid disability certificate from the Medical Board having been issued within three months prior to presenting his application for seeking admission in any medical course by claiming the benefit of reservation. In other words, the last valid disability certificate of the candidate from a Medical Board should not be more than three months old from the date of submitting his or her application for seeking admission in the reserved category for disabled candidate.''
7. The stand of the Respondent Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment is that - ''Section 39 of the Disabilities Act stipulates that all Government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three percent seats for persons with disabilities. The respondent submits that what is required by Section 39 of the Disabilities Act is the reservation of not less than 3% of the total seats for persons with disabilities. The Section does not speak of any further classification of the 3% reservation amongst different categories of disabilities. Internal classification has been provided only against reservation of posts in employment under Section 33 of the Disabilities Act. Section 33 requires the appropriate Government to appoint in every establishment not less than three percent vacancies for persons with disabilities of which one percent each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy, in the posts identified for each disability. Section 39 envisages no such internal distribution or bifurcation; it simply provides for not less than 3% reservation of sets for persons with disabilities irrespective of the nature disability, whether locomotor, visual or hearing impairment. The respondent further submits that this issue was discussed with the Ministry of Social Justice and Empowerment and a view was taken that any further internal cataloging or categorization, that is to say, providing for 1% reservation of seats each for locomotor disabled, visually impaired and hearing impaired thus making up a total of three percent, will be contrary to the mandate of Section 39. The respondent further submits that the provision for minimum 3% reservation for persons with disabilities is not additive in nature and will not, in any manner be in conflict with the settled rule of 50% reservation. The said reservation provision is in accordance with the principle of interlocking of vertical and horizontal reservations in favour of persons with disabilities which is referred to as horizontal reservation. The horizontal reservations cut across the vertical reservation. To illustrate, suppose 3% seats are reserved for candidates with disabilities. The candidates selected against these reserved seats will be placed against their respective categories i.e. if he belongs to SC category, he will be placed in that quota and adjusted against that category. Similarly, if a candidate with disability belongs to General Category, he will be placed in that category and will be adjusted against the General Category seats. The respondent further submits that the horizontal reservation will not affect the percentage of reservation in favour of SC ST, etc.''
8. This stand is obviously predicted
on the extracted paragraph of the trailblazing judgment of the Hon'ble Supreme
Court titled Indra Sawhney etc. etc. v. Union of India and others, etc. etc.
AIR 1993 SC 477, and this following paragraph in particular :-
''However, reservation for individuals are permissible under clause (1) on a ground other than economic, provided of course, the ground is not hit by Article 16(2). Instances of such individuals have been given earlier which need not be repeated here. There is, however, no need to make additional reservations for such individuals over and above those made under clause (4). the individuals can be accommodated in the quota reserved for the backward, or in the unreserved or general category depending upon the class to which they belong. For example, the defence personnel and the freedom fighters or their dependents, physically handicapped, etc., can be accommodated in the reserved quota under Art.16(4) if they belong to the backward classes, and in the unreserved posts/appointments if they belong to the unreserved categories. This is so because in their respective classes, they will be more disadvantaged than others belonging to those classes. Such a classification need not hit either clause (1) or cause (2) of Article 16 but would be justifiable. If this is done, there would be no occasion to keep extra posts/appointments reserved for them under clause (1).
9. The contention of the Delhi University
is that Section 39 should be read with Section 33 and the Resolution of the
M.C.I. Its response is also that - ''reservation under Section 33 of the Disabilities
Act is one per cent for each category mentioned the rein i.e. 1% for those who
are visually handicapped and 1% for those with hearing impairment and 1% for
those with locomotor disability. Since the first two categories have been held
to be not eligible by the Medical Council of India to pursue medical curse,
in so far as the third category i.e. Persons with locomotor disability held
to be eligible, the stipulated reservation of 1% for the said category in terms
of Section 33, has been rightly provided by the Delhi University. Total number
of seats in the Delhi University in the MBBS course is 410 and 1% of the same
is 4 and the Delhi University has rightly set apart 4 seats for the physically
handicapped candidates with locomotor disability.'' The University has drawn
up the following Table regarding apportionment of the available seats-
State showing tentative number of seats in Under-Graduate
course for the session 2003:
Name of Seats to be filed in by the Seats to be filled in by
Medical University of Delhi. D.G.H.S.
GEN PH SC ST CWAPP NGOI 15% Total
HMC 44 1 19 10 6 30 20 130
MAMC 95 2 27 14 9 6 27 180
CMS 57 1 15 7 5 Nil 15 100
Total 196 4 61 31 20 36 62 410
MAMC 12 3 2 Nil Nil 3 20
10. As has been contended by learned counsel for the University, and as is also evident on a perusal of the Table extracted above, four seats have been reserved for allocation to the Physically Handicapped, being one per cent of the total number of seats. The reservation made for the Physically Handicapped is additive in nature, and brings about a vertical reservation and not horizontal reservation. In view of the extracted observations in Indra Sawhney's case (supra), it would be advisable that upon students being granted admission in the category of the Physically Handicapped, they should be adjusted against their respective categories i.e. By horizontal interlocking. In the present case, four seats have been set apart for the Physically Handicapped. If three per cent reservation is to be effected, the entitlement under this category would increase to twelve. However, in the present year it appears that there are only eight candidates in all, out of which four candidates have already been granted admission by virtue of the one per cent additive quota. In the event that all the students are granted admission in the current year, the increase would be of the two Petitioners and if this is adjusted by horizontal interlocking, the aggregate reservations would not be altered. It may be advisable that the Respondents should ensure that in the coming years, the horizontal method should be implemented rather than the vertical or additive method of reservations.
11. The next question to be addressed is whether the University is justified in allocating only one per cent reservation for the physically handicapped. Here also there appears to be no room for controversy. The language of Section 39 is explicit. It brooks no interpretation other than mandating that at least three per cent reservation should be made for the physically handicapped. Section 39 must be given effect to independent of any other provision in the Disabilities Act. Its inclusion in Chapter VI is an unhappy error. If Section 33 is to temper the implementation of Section 39, although the two provisions are disparate in scope (the earlier deals with employment and the later with seats in educational institutions) there is every reason to also similarly apply Section 36. This argument of Mr. Rungta cannot be countered. The Disability quota cannot be extinguished even partially and cannot lapse in favour of any other category. As has been advocated by the Commissioner for Persons with Disablities, Ministry of Social Justice and Empowerment, the reservation should be three per cent regardless of the fact that persons suffering from blindness or low vision, and those suffering from hearing impairment are not entitled to reservation for admissions to medical colleges. In its Memorandum dated 5.7.2001, in the final paragraph this is also how the Medical Council of India understood the position since it had recommended that ''in case there are not enough number of candidates who qualify themselves for such number of reserved seats the remaining seats should be merged with the respective category of existing reservation.'' The Medical Council of India is in fact giving effect to Section 36. It has been contended that reference is made to the other reserved categories such as Scheduled Castes and Scheduled Tribes, but I failed to find any justification for this interpretation since the Medical Council of India was not concerned or dealing with any category other then the disabled. Unless his interpretation is given, there would inexorably be a palpable violation of the statutory imperative contained in Section 39 of the Disabilities Act. I hold that a minimum three per cent of the seats must be reserved for the physically handicapped to be distributed among any or all of the sub-categories as the case may be. I direct accordingly.
12. In the context of the discussion in the two preceding paragraphs it will be seen that the four seats set apart for assignment to the physically handicapped has not been challenged. In the current year only the two Petitioners namely Rekha Tyagi and Parul Jhunjhunwala remain to be considered. These students would have to be granted admission, but on a horizontal interlocking manner. The contention of some Applicants from the General Category, in application which I shall dismiss, is that if the resrevation for the physically handicapped is increased then persons in the General Category would be adversely affected. This argument would only apply if a further vertical interlocking or additive reservation is to occur. Since this is not to be effected, even if they are be adversely affected, their grievances are not legally sustainable because of the ratio in Indra Sawhney's case (supra). A student in the General, SC, ST Category, or for that matter, any other category cannot be heard to complain (sic) they fail to secure admission because their ranking in the merit list is not sufficiently high.
13. The third question pertains to
whether the Delhi University or any other Institutions who is to give effect
to the reservation for the physically handicapped, is legally authorised to
insist that candidates should appear before a Medical Board constituted by them.
This can be immediately resolved by adverting to the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996
(hereinafter referred to as `the Disability Rules'). Rule 3 of the Disability
Rules in Chapter II empowers the Government of India, Ministry of Welfare to
publish general guidelines for evaluation and assessment of various disabilities
specified in Section 2 of the Disabilities Act. Rule 4 of the Disability Rules
which is germ (sic) to the issue reads as under:
''4. Authority to give Disability Certificate.--(1) A Disability Certificate shall be issued by a Medical Board duly constituted by the Central and the State Government.
(2) The State Government may constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotor/Visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be''.
14.On a conjoint reading of Section
58 of the Disabilities Act and Rule 4 of the Disability Rules, it will be crystal
clear that individual Universities, Institutions or Establishments have no alternative
but to accept a certificate issued by the Medical Boards constituted by the
Central or State Governments, as the case may be. Any other interpretation would
render Rule 4 totally otiose. Since this Rule has not been challenged it must
be given effect to. Even though there may be some substance in the Universities
stand that it is quite possible that some Medical Board may be lenient in the
manner and extent of their certification when compared with others, in the cases
before me all the candidates are from Delhi. The following Order has palpably
been issued in the exercise of the power contained in Rule 4.
''Government of National Capital Territory of Delhi
(Health and Family Welfare Department)
Level 9, Wing-A, Delhi Secretariat, New Delhi-110002
No.F.27/8/93-HandFW/ Dated : 8.8.2002
In furtherance of order of even
no. dated 09.03.2000 the Medical Superintendents of the following 9 hospitals
along with jurisdiction for issue of medical disability certificates are hereby
authorized to co-opt an Orthopedic surgeon, if available in the hospital or
else from the nearby major hospital for specific cases for issuance of disability
1. Lok Nayak Hospital
2. Aruna Asaf Ali Government Hospital
3. Deen Dayal Upadhyay Hospital
4. Guru Gobind Singh Government Hospital
5. Sanjay Gandhi Memorial Hospital
6. Guru Teg Bahadur Hospital
7. Lal Bahadur Shastri Hospital
8. Babu Jagjivan Ram Memorial Hospital
9. Rao Tula Ram Memorial Hospital
This issues with the approval of Pr. Secretary (H and FW), GNCTD.
Addl. Secretary (H and FW )''
15. In the case of Dr. Raman Khanna his `Medical Handicapped Certificate' has been issued by LNJP Hospital, Delhi Administration which has been specifically empowered to carry out this task by the Government of NCT of Delhi, Health and Family Welfare Department, New Delhi in terms of Order dated 8.8.2002. The members of the Board include not just a `specialist' in locomotory disabilities but the Director Professor of Orthopaedic himself. Can any doubt or suspicion still be entertained? I hold that Delhi University does not have power to insist that persons who have produced Medical Handicapped Certificate from any of the nine hospitals mentioned in the Order dated 8.8.2002 should nevertheless appear before a Medical Board constituted by the University.
16. The fourth question which calls to be answered is whether it is permissible for the MCI to stipulate that only persons suffering from 50% to 70% disability shall be entitled to the benefits of the statutory reservation for the physically handicapped. Mr. Maninder Singh learned counsel for the MCI had relied on the decision of the Constitution Bench of the Apex Court in Dr. Preeti Srivastava and another Versus State of M.P. and Others, (1999) 7 SCC 120. In that insistence by the University or Institution on marks over and above the minimum set down was upheld. It has been contended that so long as the minimum three per cent is not being violated, the policy to consider persons suffering from 50% to 70% disability should also similarly be upheld, regardless of the fact that Section 2 (t) of the Disabilities Act defines a person with a disability as one suffering from not less than 40% of any disability as certified by the Medical Authority. The MCI as well as the University have jointly stated that 40% disability is very often so trivial in nature that it would tantamount to granting an unfair advantage to such persons and thereby defeating the intendment and purpose of the Disabilities Act. By way of illustration it has been mentioned that loss of a phalanx or phalange of a finger may entitle a candidate to claim 40% disability. It has also been contended that a person with more aggravated disability should be preferred against another who suffers from a relatively minor disability. Counsel submit that this is the intention behind the upward revision from 40%-60% to 50%-70%, and I see no reason to doubt their rationale and intention, so long as the three per cent minimum reservation is not breached. However, it appears to me to be impermisible for any institution to introduce conditions which would have the consequence of defeating statutory provisions contained in any welfare legislation. However, all the requirements can be achieved if the University invites application from persons suffering from a disability of 40% and above so that statutory imperative is complied with. Thereafter it may conceive of and lay down a system whereby persons with more aggravated affliction would be given precedence over others. Conceptually, this could be achieved by making three brackets of 70% to 60%, 60% to 50% and 50% to 40% disability. If there are no candidates other than in the 40% to 50% category, it would illegal for the Respondents not to give effect to the statutory benefits imparted by the Disability Act. Statutory imperatives operate in a field distinct from Rules or criteria laid down by autonomous or other Authorities. In the present case I may record that no challenge has been mounted against the upper limit of 60% or 70%. Certainly it is arguable that persons suffering from a higher disability should nevertheless be entitled to an affirmative preference. This need not be answered by me and as presently advised in these Petitions. I would be loath to interfere with the wisdom of a specialised body such as the M.C.I.
17. The Delhi University has insisted that the Petitioner, namely, Dr. Raman Khanna should appear before a Medical Board constituted by the University, and if it was then determined that he suffers from a disability recognized/identified by the Medical Council of India in the range of 50% to 70%, the University would grant admission to him in the post-graduate course of ''Community Medicine''. It has been made clear that this concession was being made because of the interim Orders dated 30th April, 2003 directing that one seat be kept vacant. At first blush, this submission appeared to me to be very reasonable. Therefore, I viewed the Petitioner's refusal to take up this offer and appear before the University's Medical Board as stubborn and obdurate, and perhaps self destructive. Dr. Dubey, learned senior counsel for the Petitioner, has contended that the University Bulletin for Session 2003, Reservation for Physically Handicapped Candidates, is unfair and without the authority of law. He has assailed the stipulation to the effect that ''among the locomotory disabled the upper limb should be functional and normal''. While he has relied upon the gradation of 40% to 60% disability, he has challenged the subsequent stipulation altering this range of disability upwards to 50% to 70%, as introduced and enforced from the last month, i.e. July, 2003. Dr. Dubey He has also drawn attention to the fact that the Bulletin or Calender or Regulations do not specify that the Medical Certification of Disability should have been issued within three months of the commencement of consideration, and that had it been so indicated the Petitioner would indubitably have filed a recent certification together with the 1990 Medical Certificate verifying Dr. Khanna's loc motory disability. In the course of arguments before me a Certificate issued by the Office of the Medical Superintendent, Lok Nayak Hospital, Delhi Administration, issued in February, 2003, has been placed on the record of the Court. It mentions the Peitioner's disability as ''Haemophilic arthropathry right knee and both elbows'' and as being ''above forty''.
18. Since the Medical Handicapped Certificate has been issued by a Hospital specially designated to do so in terms of the Order dated 8.8.2002 of the Government of NCT of Delhi, I am of the view that it must be accepted by the Respondents. It should not be forgotten that the Petitioner has already succeeded in completing the MBBS. He has also successfully completed the Internship for one year and is stated to have worked in Neuro Surgery. Inasmuch as the Petitioner is to be considered for further studies in Community Medicine, it is not possible to accept that he is not suitable for this post-graduate course of study. It also places a shadow on the MCI's decision to insist that the locomotory disability should be restricted to the lower limbs only. Certainly Section 2(o) of the Disabilities Act does not place any such embargo. I would suggest that MIC should give further thought to this vexed subject since the Petitioner's educational qualification and practical experience puts MIC's decision in grave doubt. For the present, keeping in view that there is only one candidate who has applied under the physically handicapped category and whose certification shows that he is above the 40% degree of disability, I direct that the MCI and Delhi University to reconsider the policy of disqualifying candidates with disability of the upper limbs for availing the benefits enshrined in the Disabilities Act. If this is not done it would directly offend Section 39 of the Disabilities Act. It should also not be forgotten that, as is clear from the letter of Dy. Secretary, MCI dated 29.4.2003, no guidelines were in place for reservation to post-graduate medical posts. Stipulation pertaining to post-graduate studies has been introduced very recently, almost at the conclusion of the admission. It would be only fair that prospective operation of such directions should be insisted upon by the MCI and the University.
19. Finally, there is the question of the LNJP Hospital's Certificate which was produced in the course of the hearing. It is necessary to recall that the Bulletin did not specify that the Medical Handicapped Certificate should have been issued within three months of the application being made. Counsel for the Respondents have not without some substance and justification, drawn my attention to the fact that this Certification could have been filed even at the time of the application. In the circumstanes of the present case, where a medical seat is likely not to be filled up, I feel that a definitive answer on this question is unnecessary. Valuable National Resources should not be lost to procedural wrangles. Interim Orders shall, continue till one week after the MCI takes a fresh decision on the Petitioner's application and conveys it to the Petitioner.
20. The Petition No.2670/2003 is disposed of in these terms. Civil Writ No.2912/2003 and Civil Writ No.4345/2003
21. The Petitioners, namely, Ms.
Rekha Tyagi and Ms. Parul Jhunjhunwala have not been granted admission because
only one per cent reservation has been implemented for the physically handicapped.
In the view that I have taken above if these students have been unsuccessful
only because of the one per cent reservation, I direct the Respondents to grant
admission to the Petitioners in the undergraduate course (MBBS, BDS) to the
seats presently available. In passing these Orders it should be kept in mind
that the number of persons accommodated by my Judgment against the three per
cent reservation protected by Section 39 of the Disabilities Act, does not even
exceed two per cent in the current academic year.
CM 8658/2003 in CW 2912/2003
22. This application for impleadment under Order I, Rule 10 read with Section 151 of the Code of Civil Procedure by candidates for admission to the MBBS Course in Delhi University for the academic year 2003-2004 holding the merit ranking of 219/221 and 223. They have averred that the reservations accommodated by the Delhi University offend the directions of the Hon'ble Supreme Court given in Indra Sawhney's case (supra). Essentially, these applicants have adopted and/or supported the stand taken by the Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India. They could have but have not challenged the University's dispensation of reservations in excess of fifty per cent. Unless the reservations are further pushed upwards so that by Orders of this Court the seats available to the General Candidates is reduced, they have no interest in the outcome of these petitions. Permitting them to be impleaded will needlessly protract proceedings. Their arguments are similar to those raised by the Respondent Commissioner.
23. In these circumstances, and also
for the reason that the Applicants ought to have filed their own Writ Petitions,
the application is rejected.
C.M. 8659/2003 in CW 2912/2003
24. In view of the judgment rendered
in these petitions the application need not be dealt with separately. Furthermore,
their application for impleadment has also been rejected. This application is
25. The writ petitions are allowed
in the above terms.
26. A copy of this Judgment be given DASTI to learned counsel for the Parties.