IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30/04/2003
Coram
The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice
and
The Honourable Mr. Justice D. MURUGESAN
W.A. No.595 of 2003
and
W.A.M.P. No.783 of 2003
1. The Secretary,
Educational Department,
Government of Tamil Nadu,
Secretariat, Chennai - 9,
2. The Director of Medical Education,
Directorate of Medical Education,
No.162, Periyar EVR High Road,
Kilpauk, Chennai - 10.
3. The Secretary,
Selection Committee,
Directorate of Medical Education,
No.162, Periyar EVR High Road,
Kilpauk, Chennai - 10. ... Appellants
-Vs-
Master J. Rajkumar (Minor)
Rep. By his father and natural guardian
D. Joseph,
Elagiri. ... Respondent
Appeal against the order of the learned single Judge dated 30.12.200 2
passed in W.P.No.36781 of 2002.
!For Appellant : Mr. V.R. Rajasekaran, Spl. G.P.
(Education)
^For Respondent : Mr. Om Prakash for M/s.Ramalingam
Associates
:J U D G M E N T
THE HON’BLE THE CHIEF JUSTICE
This Writ Appeal raises an important question of law for consideration
regarding the enforceability of 3% reservation for the persons suffering with
disabilities as provided in the ‘The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
hereinafter referred to as the Disabilities Act.
2. Few facts, leading to the filing of the Writ Petition No.36781
of 2002, may be necessary to be stated. The respondent is a minor represented
by his father and is 50% physically disabled because of polio attack during
his childhood. He appeared in Entrance Examination conducted for Medical/BDS
course for the academic year 2002 – 2003 and secured 285.37 out of 300 marks
but he could not get admission in Open Category and among physically disabled,
he was placed at fifth rank. He could not get a seat in M.B.B.S. course as
only three seats were earmarked for disabled. However, he was offered a seat
in B.D.S. in payment category. Aggrieved by the said action, he had filed
the writ petition.
3. The learned single Judge, by his order dated 30.12.2002, upheld the
plea that the respondent/writ petitioner was entitled for a seat construing
Section 39 of the Disabilities Act as mandatory, disapproved earmarking of
only three seats out of the sanctioned seats of 1,255 and held that 39 seats,
conforming to 3% reservation for the disabled, ought to be provided and
consequently issued directions to the appellants herein to admit the writ
petitioner in the M.B.B.S. course for the academic year 2002 – 2003. The
argument of the appellants before the learned single Judge that the provision
contained in Section 39 of the Disabilities Act is not applicable and in any
event, it is only directory and not mandatory, was negatived. Hence, this
Appeal.
4. Mr. V.R. Rajasekaran, learned Special Government Pleader (
Education), appearing for the appellants, strenuously contended that the State
had already enacted the Tamil Nadu Backward Classes, Scheduled Castes and
Scheduled Tribes (Reservation of Seats in Educational Institutions and
Appointments or Posts in the Services under State) Act, 199 3, hereinafter
referred to as T.N. Act 45 of 1994, and as such, there is no scope for
implementing the Disabilities Act enacted by the Central Government and that
in any event, the provision contained in Section 39 of the Disabilities Act is
only directory and not mandatory, that it is not possible to give 3%
reservation for disabled, that the three seats reserved for M.B.B.S. course
are sufficient for them, that even those seats have been filled up for the
academic year 2002 – 2003, that classes have begun long before the order of
the learned single Judge and that the order of the learned single Judge is fit
to be set aside.
5. Mr. Omprakash, learned counsel appearing for the respondent/
petitioner, has countered the said arguments submitting that Section 39 of the
Disabilities Act is mandatory in nature, that the respondent/ writ petitioner,
who had secured good marks, was entitled as of right to be admitted under the
quota for disabled, that the quota for disabled should be only 3% and not
three seats, that T.N. Act 45 of 1994 cannot nullify the beneficial provision
provided under the Disabilities Act and that the order of the learned single
Judge has got to be affirmed.
6. Of the contentions and the rival contentions made, the
following points emerge for consideration;
(i) whether the Disabilities Act enacted by the Central Government is not
effective in Tamil Nadu in view of T.N. Act 45 of 1994;
(ii) whether Section 39 of the Disabilities Act is mandatory or directory;
and
(iii) whether the writ petition is hit by laches and the writ petitioner is
not entitled for the relief in view of the filling up of seats for the
academic year 2002 – 2003.
7. The Supreme Court in INDIRA SAWHNEY v. UNION OF INDIA (AIR 1993 SC
477) held that reservations contemplated in Clause 4 of Article 14 of the
Constitution should not exceed 50% excepting in certain extraordinary
situations where relaxation may become imperative but cautioned that while
doing so, a special case should be made out like the population inhabiting far
flung and remote areas. The Tamil Nadu Act 45 of 1994 was enacted seeking
such relaxation to reserve 69% of the seats in educational institutions and
vacancies in public employment for Backward Classes, Most Backward Classes,
Scheduled Castes and Scheduled Tribes. The said Act is under challenge before
the Supreme Court and is pending adjudication.
8. Tamil Nadu Act 45 of 1994 deals with class reservation on the basis of
backwardness. The reservations therein are vertical. So far class
reservation is concerned, INDIRA SAWHNEY’s case (supra) held that reservation
is vertical. But coming to gender reservation, it is not vertical but
horizontal and has to be reserved according to the percentage specified in
each of the classes i.e. Other Communities, Backward Communities, Most
Backward Communities, Scheduled Castes and Scheduled Tribes. Likewise, 3%
reservation for Physically Handicapped should also be horizontal and not
vertical. 3% reservation in Tamil Nadu Medical Education works out to 37
seats out of 1,255 seats. These 37 seats have to spread horizontally into the
above categories viz., Other Communities, Backward Communities, Most Backward
Communities, Scheduled Castes and Scheduled Tribes. As such, there is no
conflict in between the Disabilities Act and Tamil Nadu Act 45 of 1994 and
even if such conflicts occur, then the Disabilities Act being a later one and
traceable to Entry 25 List III of Schedule 7 of Indian Constitution, would
prevail over any repugnant provisions in Tamil Nadu Act 45 of 1994.
9. Section 39 of the Disabilities Act reads as follows: “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 than three per cent
seats for persons with disabilities.”
A bare reading of the above Section itself would not leave any doubt that it
is mandatory and not directory. Further, the very object and intendment in
enacting Disabilities Act is to provide equal opportunities to the disabled
and a reading of the decision JAVED ABIDI v. UNION OF INDIA (1999) 1 S.C.C.
467) makes it clear that the said provision is mandatory and not directory.
It is apt to extract the emphasis laid by the Supreme Court, which is in
following terms:
“……………..It may be borne in mind that the Economic and Social
Commission for Asian and Pacific Region held a meeting at Beijing from
1-12-1992 to 5-12-1992 and adopted the Proclamation on the Full Participation
and Equality of People with Disabilities in the Region and India is a
signatory to the said Proclamation. The Act in question was passed by
Parliament which intends to provide for the following as is apparent from the
Statements of Objects and Reasons:
‘(i) to spell out the responsibility of the State towards the prevention of
disabilities, protection of rights, provision of medical care, education,
training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier-free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the
sharing of development benefits, vis-`-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons
with disabilities;
(v) to lay down strategies for comprehensive development of programmes and
services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with
disabilities into the social mainstream.’
The Committees constituted by the Central Government as well as by the
respective State Governments must, therefore, make an earnest endeavour to
achieve the objectives, as indicated above, in exercise of their powers
conferred under the Act.”
It is now clinching that the above beneficial provision is mandatory and not
directory.
10. The writ petition was filed in the month of September 2002
seeking admission under the reserved quota for Physically Handicapped and
pending adjudication, a direction was sought for to reserve a seat. The
petition was allowed by the learned single Judge in the month of December,
2002. There has been no stay of the operation of the said judgment. In the
circumstances, we cannot accede to the contention of the learned Government
Pleader that the writ petition is hit by laches.
11. In the above circumstances, we fully concur with the judgment
rendered by the learned single Judge Mr. Justice E. Padmanabhan and
accordingly, dismiss this Writ Appeal. Consequently, W.A.M.P. No.783 of 2003
is closed.
12. In order to see that the benefits of the Disabilities Act
reach to all the disabled covered by the said Act, a copy of this judgment be
communicated to the Chief Secretary, Government of Tamil Nadu, with a
direction to issue necessary instructions to the concerned authorities to
follow the rule of reservation of 3% to the disabled in all the Governmental
educational institutions and also the educational institutions running with
the aid from the Government.
(B.S.R., CJ) (D.M., J)
bh/
LR Entry:Yes
Internet:Yes