Gujarat High Court Case Information System
Print
SCA/5592/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5592 of 2011
=========================================================
PARIMAL
K PATEL - Petitioner(s)
Versus
UNION
OF INDIA - THROUGH SECRETARY & 5 - Respondent(s)
=========================================================
Appearance :
MR
PRABHAV A MEHTA for Petitioners : 1,
NOTICE SERVED for Respondent
2.
MR ANSHIN H DESAI for Respondent : 1,
NOTICE UNSERVED for
Respondent(s) : 3,
MS KRINA CALLA, ASST. GOVT PLEADER for
Respondents:4 - 5.
MRS VD NANAVATI for Respondent(s) :
6,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 05/09/2011
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
matter relates to admission in Post Graduate Medical Course.
The
petitioner is a physically handicapped person and claims reservation
against 3% quota reserved for physically handicapped persons under
section 33 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 [for short,
hereinafter referred to as the ‘Disabilities Act’]. The petitioner
having not been granted admission against the reserved seats,
preferred the writ petition for a direction to the 6th
respondent to grant him admission in the Post Graduate Medical Course
against reserved category for physically handicapped.
On
appearance, the 4th respondent University has taken a plea
that only three seats were reserved for physically handicapped
category, and the petitioner having not come within the zone of
admission being lower in the merit list, cannot be accommodated.
Learned
counsel for the petitioner would submit that the petitioner was at
Sl. No.1 in the merit list of physically handicapped persons. He has
relied on the marks obtained by one or the other persons. He would
further submit that there being about 300 seats for Post Graduate
Medical Course, approximately 9 seats ought to have been reserved in
favour of physically handicapped persons.
Learned
AGP appearing on behalf of the State referred to roster point at
Annexure R-1, page 91. As per the said roster, out of 100 seats,
seats at 34, 68 and 100 are to be filled up from amongst physically
handicapped persons. It was brought to the notice of the Court as to
how 3 seats have been allocated in the Non-Surgical field, vide
Annexure R-III page 93, which reads as follows:
NON-SURGICAL:
Sr
Branch
Subject
Used
Roster Point
2010
Total
seats
2011
First
Roster Point
2011
Total
Roster Point
S.C
S.T
SEBC
Open
PH
1
MD-1
Medicine
88
13
89-101
13
1
2
4
6
1
2
MD-2
Pathology
69
13
70-82
13
1
2
4
6
3
MD-5
Paediatrics
43
6
44-49
6
0
1
2
3
4
MD-6
Anesthesia
119
25
120-144
25
2
4
6
13
1
5
MD-9
Radio
59
6
60-65
6
0
1
2
3
6
MD-10
Radio
Therapy
28
2
29-30
2
1
0
1
0
7
MD-11
Skin
& VD
25
3
26-28
3
0
1
1
1
8
MD-12
Psychiatry
28
2
29-30
2
1
0
1
0
9
MD-14
TB
& chest
35
1
36
1
0
0
0
1
10
MD-16
Microbiology
40
7
41-47
7
1
1
2
3
11
MD
IHBT
25
1
26
1
0
0
1
0
12
MD
Emer
Medicine
2
2
3-4
2
0
0
1
1
13
MD-4
Pharmacology
33
5
34-38
5
0
1
2
2
1
14
MD-7
PSM
54
10
55-64
10
1
1
3
5
15
MD-8
Physiology
50
7
51-57
7
0
1
2
4
16
MD-15
Forensic
Medicine
18
4
19-22
4
0
1
1
2
17
MD
Anatomy
35
5
36-40
5
0
1
1
3
18
MD
Bio
Chemistry
2
1
3
1
0
0
0
1
It
was contended on behalf of the State that against the reserved seat,
one Rushikesh Madhusudan Shah has already been admitted. It was
submitted on behalf of the respondents that as per the guidelines of
the Medical Council of India, a person having locomotor disability of
lower limb can only be admitted, and the petitioner having locomotor
disability of upper limb could not have been given preference over
those who have locomotor disability of lower limb.
In
the affidavit filed by the petitioner, the following candidates are
shown to have been admitted in physically handicapped quota.
1
Sailesh
Keshubhai Sudani
PH-1
Open 457,
MD
Pediatric
2
Rushikesh
Madhusudan Shah
PH-1
Open 478,
MD
Medicine
3
Gelabhai
Ragubhai Jogarajiya
PH-3
SEBC-145
MD
Pharmacology
4
Misha
Babulal Agrawal
PH-4
Combined merit 654
MD
Anesthesia
5
Rajesh
Motilal Desai
PH-6,
SEBC-171
MD
Physiology
6
Vinod
Babulal Shah
PH-12
– Open 549
Diploma
Anesthesia
This
Court intended to know as to why the State Government has shown
reservation of quota upto Sl. No. 144 to suggest that only 3 seats
have been allocated for physically handicapped persons.
Dr.
Manjula Anchaliya, Director, Post Graduate Study and Research, B.J.
Medical College, Ahmedabad appeared and explained the position. It
is stated that there are total 293 Post Graduate Seats, out of which
50% is reserved for All India quota and 50% for State quota.
Therefore, 147 seats were allocated for All India quota and 146 seats
were allocated for State quota, and as per the roster point and quota
allocated, 3 seats have been allocated on which admissions have been
as shown in the chart quoted above.
Learned
counsel for the petitioner submitted that the petitioner cannot be
discriminated on the ground that the petitioner has locomotor
disability of upper limb. He has placed reliance on the decision
dated 24.11.2010 of Division Bench of this Court in Special Civil
Application No. 6412 of 2010 in the case of DR. DEVAL R. MEHTA
V/S UNION OF INDIA & OTHERS wherein the Division Bench has
held that the Post Graduate Medical Education [Amendment] Regulation
2009 framed by the Medical Council of India issued by Notification
dated 245.03.2009 is contrary to and amounting to altering definition
of ‘person with disability’ as defined under section 2(t) of the
Disabilities Act and held Post Graduate Medical Education (Amendment)
Regulations, 2009 Part I so far as it relates to addition of
sub-clause (1)(a) and proviso to clause 2(iv) to Section 9 relating
to locomotory disability as ultravires. It is informed that the
aforesaid judgment has been challenged before the Supreme Court and
ad-interim order of stay has been passed by the Supreme Court. In
view of the stay order passed by the Supreme Court, the case of the
petitioner cannot be considered based on the said judgment.
Apart
from the aforesaid facts, we find that all the seats have now been
filled up and six candidates have already been admitted. Their
admission having not been challenged, no relief can be granted as
sought for in the present writ petition.
In
the absence of any merit, the petition is disposed of. No costs.
[S.J.
MUKHOPADHAYA, C.J]
[J.B.PARDIWALA,
J.]
mathew
Top