BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/09/2009 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No. 6227 of 2009 and M.P.(MD)No.1 of 2009 N.Shobana ... Petitioner Vs. 1.The Secretary, Educational Department, Government of Tamil Nadu, St. George Fort, Chennai-1. 2.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-10. 3.The Chairman, District Medical Board, Dindigul District, Dindigul. ... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, directing the 2nd respondent to provide a seat to the petitioner under the special category for physically challenged as per seniority in the counselling for admission to MBBS/BDS course 2009-2010 session in Government college in MBBS course as per their call letter and pass such orders. !For Petitioner ... Mr.D.Venkatesan ^For Respondents ... Mr.Rajasejar Special Government Pleader :ORDER
Heard both sides.
2.The petitioner belongs to backward community and she applied for MBBS
seat for the academic year 2009-2010 under the special category-04 viz., for
physically challenged.
3.According to the petitioner, the 3rd respondent after examining the
petitioner gave a certificate that the petitioner is having “Orthopaedic
Handicap” called as “Osteopetrosis” and she is also having shortening of right
leg about 4 cms and gave the certificate that the petitioner is having 50%
disability. Therefore, the petitioner applied for a seat under the physically
challenged category. The 2nd respondent directed the petitioner to appear for
counselling on 06.07.2009 and after the counselling, the 2nd respondent rejected
the application of the petitioner that she is not eligible to be considered
under the ‘physically challenged category’ and she has to compete under the
General category.
4.According to the petitioner, as per the certificate issued by the 3rd
respondent, she is having 50% disability and therefore, the rejection by the 2nd
respondent that she is not eligible to be considered under the physically
challenged category is not correct. Hence, the writ petition is filed,
directing the respondents to provide her a seat in the MBBS course for the
academic year 2009-2010.
5.The respondents 1 and 2 filed the counter affidavit stating that as per
the opinion of the Expert Committee, the petitioner is having only 20% of the
disability of lower limb and as per the prospectus, a person, who claim
eligibility for seats reserved for physically handicapped must have disability
in the lower limb between 50 to 70% and if no such candidates are available in
that category, then the candidates with disability of lower limb between 40 to
50% will be considered.
6.As per the medical certificate for physically handicapped, issued by the
Special Medical Board, the percentage of disability of lower limbs found on the
petitioner is only 20% and therefore, she is not coming under the category of
physically challenged persons as per the provisions of the prospectus and hence,
the petitioner’s case cannot be considered.
7.Mr.D.Venkatesan, the learned counsel appearing for the petitioner,
submitted that the petitioner has produced the medical certificate issued by the
District Medical Board and as per the certificate, her disability is 50% and
hence, she is eligible to be considered under the physically challenged
category. He further submitted that three seats are reserved for physically
handicapped people and therefore, totally 42 seats are available and as per the
list published by the 2nd respondent, only 34 candidates have become eligible to
claim under physically challenged category and as the petitioner is ranked
as 7th person, she should have been given a seat under that category, as she is
having disability as stated in the certificate issued by the 3rd respondent.
8.He further submitted that admittedly the petitioner is having disability
and when the 2nd respondent takes a stand that the petitioner having 20%
handicapped in the low limbs, it is contrary to the certificate issued by the
3rd respondent.
9.As per the provisions of the Rule 5(3) of the Persons with disabilities
(Equal Opportunities protection of Rights and Full Participation) Rules,
opportunity must be given to the petitioner to prove her disability as per the
standard prescribed in the prospectus and without giving that opportunity, the
2nd respondent should not have relied upon the certificate issued by the Special
Medical Board.
10.Mr.Rajasekar, the learned Special Government Pleader, submitted that so
far as the medical college seats are concerned, the candidates are governed by
the terms of the prospectus and as per the prospectus, the minimum requirement
for any person to come under the category of physically challenged or physically
handicapped must be disablement of lower limbs between 50% to 70% or at the
most 40% to 50% otherwise they may not be considered as physically handicapped
so as to claim reservation under that category. He further submitted that as
per the petitioner, she is not having disability of lower limbs between 40% to
50% and hence, she is not eligible to claim reservation under that quota. He
further submitted that in the certificate given by the District Medical Board,
disability was given as 50% and that was not with reference to the lower limb,
but it is the overall disability of the petitioner which cannot be taken into
consideration for claiming reservation.
11.According to him, the total physical disability of the petitioner was
taken into consideration by the person while issuing certificate, whereas while
issuing disability certificate by the Special Medical Board they have taken into
consideration the disability of the lower limb as prescribed in the prospectus.
Therefore, 50% as stated in the certificate issued by the Medical Board viz.,
3rd respondent cannot be taken into consideration to claim reservation.
12.According to me, in so far as the admission to the educational
institutions are concerned, they are governed by the prospectus and as per
clause 42(iv), candidates with disability of lower limbs between 50% to 70%
shall be considered and in case candidates not available in that category, then
candidates with disability of lower limbs between 40% to 50% will be considered.
13.It is further made clear in clause 2 of the note appendix that
candidates with any other disability other than locomotor disability of the
lower limb will not be considered for admission in the M.B.B.S./B.D.S. course
under special category. As the petitioner does not have the minimum requirement
of disability of the lower limb, she is not eligible to claim reservation under
the physically disabled category and hence, the 2nd respondent is justified in
not giving any seat to the petitioner.
14.In the result, the writ petition is dismissed. Consequently, connected
Miscellaneous Petition is also dismissed. No costs.
er
1.The Secretary,
Educational Department,
Government of Tamil Nadu,
St. George Fort,
Chennai-1.
2.The Secretary,
Selection Committee,
Directorate of Medical Education,
Kilpauk,
Chennai-10.
3.The Chairman,
District Medical Board,
Dindigul District,
Dindigul.
4.The Special Government Pleader,
Madurai Bench of Madras High Court,
Madurai.