IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/03/2005
Coram
The Hon'ble Mr. MARKANDEY KATJU, Chief Justice
and
The Hon'ble Mr. Justice F.M. IBRAHIM KALIFULLA
W.A. No.63 of 2005
P. Rajaprabaharan
rep. by father and natural guardian
Mr. D. Pugazhenthi ... Appellant
-Vs-
1. The Secretary to Government
Higher Education Department
Fort St. George
Chennai-9
2. The Secretary
Selection Committee
Director of Medical Education
162 Periyar EVR High Road
Kilpauk, Chennai-10
3. The Director of Medical Education
No.162, Periyar EVR High Road
Kilpauk
Chennai-10 ... Respondents
Appeal under Cl.15 of the Letters Patent against the order
dated 4-1-2005 in W.P. No.18217 of 2004.
!For Appellant :: Mr. R. Subramanian
^For Respondents :: Mr.P.S. Sivashanmugasundaram
Addl. Govt. Pleader
:JUDGMENT
(Delivered by the Honourable The Chief Justice)
This writ appeal has been filed against the impugned order of the
learned single Judge dated 4-1-2005. Facts in detail have been set out in the
impugned order of the learned single Judge and hence we do not deem it
necessary to repeat the same in the judgment except where they are necessary.
2. Petitioner/appellant, who is physically disabled due to residual
polio, applied for admission to the M.B.B.S. Course for the academic year
2004-05 as against the seats reserved for physically handicapped candidates.
His claim was rejected on the ground that his disability was assessed at 48%
only whereas, the prospectus issued by the Director of Medical Education
provided that candidates with 50% to 70% disability alone were entitled for
consideration under the reserved quota. He, therefore, filed the writ
petition, which was dismissed by the learned single Judge holding that the
State Government can prescribe higher level of disability than the one
prescribed by the said Act. Hence, this appeal.
3. We have heard the learned counsel for the parties and have perused
the impugned order as well as the report.Sec.2(t) of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 defines “person with disability” as follows:
“(t) person with disability means a person suffering from not less than forty
per cent of any disability as certified by a medical authority.”
Sec.2(i) of the said Act, defines disability as follows:
“(i) disability means-
(i) blindness;
(ii) low vision;
(iii)leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii)mental illness;"
3. Petitioner claims to have locomotor disability, which comes within
the definition of Sec.2(i)(v) of the said Act since one of the legs of the
petitioner is paralysed due to residual polio and it is admitted that his
disability was 48%, as is mentioned in paragraph 3 of the impugned order.
Petitioner, in our opinion, is a person with disability as defined in Sec.2(t)
read with Sec.2(i) of the said Act. The learned single Judge was, however, of
the view that the definition in Sec.2(t) only lays down the minimum per cent
of any disability as defined in Sec.2(i) to enable a person to claim himself
to be a person with disability to avail the benefits under Sec.39 of the said
Act. According to the learned single Judge, the State Government can
prescribe a higher level of disability over and above 40% per cent for
consideration of the candidates. We respectfully disagree with the learned
single Judge. In our opinion, Sec.2(t) of the said Act is very clear. A
person suffering from not less than forty per cent of any disability as
certified by a medical authority is a person with disability as defined in
Sec.2(t) of the said Act. The State Government cannot prescribe a higher
level of disability than the one prescribed under the said Act as the
executive cannot override the legislature.
4. In view of the above, we are of the opinion that the petitioner is
a person with disability as defined in Sec.2(t) of the said Act and he is
entitled to claim the benefits of Sec.39 of the said Act. Hence, the relevant
clause in the prospectus prescribing that candidates with 50% to 70% of
disability alone were entitled for consideration under seats reserved for
physically disabled persons is, in our opinion, invalid.
5. We are informed that the admissions for the academic year 2004-05
were made in August 2004 and the current academic year is almost over. In
this situation, it would not be proper for us to direct that the petitioner be
given admission in the First Year M.B.B.S. Course of 2004-05 at this point of
time as that would be mid-stream admission, which is deprecated by the Supreme
Court. We, however, make clear that the petitioner is eligible to apply for
the M.B.B.S. Course for the next academic year, viz. 2005-06 and if he
applies, he is entitled to the benefits of Sec.39 of the said Act. With these
observations, we set aside the impugned order of the learned single Judge and
dispose off the writ appeal. Connected WAMP No.99 of 2005 is closed.
Jai
To:
1. The Secretary to Government
Higher Education Department
Fort St. George
Chennai-9
2. The Secretary
Selection Committee
Director of Medical Education
162 Periyar EVR High Road
Kilpauk, Chennai-10
3. The Director of Medical Education
No.162, Periyar EVR High Road
Kilpauk
Chennai-10