ORDER
S.K. Mahajan, J.
1. Petitioner is allegedly having congenital dislocation of the left hip with 2 1/2 of shortening and instability at the hip joint. This allegedly amounts to 40% of permanent orthopaedic handicap in relation of left lower limb. Petitioner passed her senior school certificate examination in 1999. Petitioner claims that in accordance with the provisions of “The persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, disabled persons are entitled to 3% reservation for admission in all educational institutions receiving aid from the Government. On 2nd December, 1999 the petitioner made a representation to the Chief Minister of Delhi of considering her in the aforesaid 3% reservation class for admission to M.B.B.S. and B.D.S. course. Petitioner is alleged to have been assured of admission with 3% reservation. Petitioner appeared in the entrance test for admission in the M.B.B.S. & B.D.S. course and despite being assured by the Deputy-Commissioner (Disabilities) for admission in the course on the basis of 3% reservation for the disabled persons and despite repeated reminders having been issued by the Deputy-Commissioner (Disabilities) to the University, admission was not given to the petitioner. The petitioner, therefore, filed petition under Article 226 of the Constitution of India for a direction to the respondents to allocate a seat for the M.B.B.S. course to the petitioner within 3% quota for physically handicapped persons in the Medical Entrance Test 2000 and for a direction to the respondent to implement the directions of the Supreme Court given in Indira Sahni’s case reported as 1992 Suppl.(3) Supreme Court Cases 210.
2. Counter affidavit has been filed by the respondent and the stand taken is that there is n reservation or quota for physically handicapped persons in the M.B.B.S. course and the provisions of the Act do not apply to reservation of seats for the disabled persons in the professional courses being conducted by the University of Delhi. In was also stated that 15% seats were reserved for S/Cs; 7 1/2% seats were reserved for STs; 5% seats were reserved for children, widows of armed personals killed/disabled; 9% seats were reserved for Government of India nominees and 15% quota was to be filled by the Director General of Health Services. It is, therefore, submitted that there is already 51% reservation for different categories and in view of the judgment of the Supreme Court, reservation for all categories shall in no case exceed 50% The contention, therefore, was that perhaps reduction in certain categories may have to be made before reservation was made for physically handicapped candidates as a special category for reservation. While reservation for SCs and STs was statutory reservations, 15% quota made available to be filled up by the Director General of Health Services was under the directions of the Supreme Court of India. Seats earmarked for Government of India nominees was pursuant to the policy of the Central Government and similarly reservation in favor of the children and widows of armed personals killed/disabled was in terms of the policy of the Government of India. It was submitted that the petitioner having not imp leaded the Union of India as a party to the Petition could not seek remedy in the present Petition. It is also the case of the respondent that M.B.B.S. course was meant for students who eventually become doctors to serve the general public and it was of utmost importance that a doctor is physically fit in every respect to be of service to the patient. It was submitted that it was for the Government of India to lay down guidelines as to what kind of physical handicaps will not operate as a bar and what kind of physical handicaps will operate as a bar. It is, therefore, submitted that since Medical Council of India has also not been made a party to the Petition, the Petition was not maintainable.
3. Reliance in favor of 3% reservation for the physically handicapped has been placed by the petitioner upon a judgment of this court in Civil Writ No. 4657/2000, Naveen Kumar A. Vs. University of Delhi, decided on 24th November, 2000. It was held by the Court in this case that interims of Section 39 of the Act, all Government educational institutions and other institutions receiving aid from the Government shall reserve not less than 3% seats for persons with disabilities and it was obvious from that Section that the educational institution is required to reserve not less than 3% seats for physically handicapped persons. The Court further held that a case for admission to the petitioner was required to be considered by the University in that class of reservation category. To the submission of the Counsel for the University that the handicap of the petitioner in that case was such that he could not under take and pursue the course in view of its requirement under the syllabus, the court directed the respondent University of Delhi to get the petitioner in that case medically examined through Medical Officer of the University and decide the question of admission within the time given by the Court. Since in the facts of that case, the student could not get admission because of the report of the Medical officer, according to the University, matter was not taken up in appeal. Learned counsel for the University has submitted that the judgment in Naveen Kumar’s case does not lays down correct law and requires to be considered by a larger Bench of this Court.
4. Act is divided into 14 chapters. Chapter 1 is the preliminary chapter dealing with the short title, extent and commencement of the Act and definitions. In the present case, we are mainly concerned with Chapters V and VI of the Act. While Chapter V deals with education to the physically handicapped persons, Chapter VI deals with employment to such persons. Sections 26 to 31 appear in Chapter V whereas Sections 32 to 41 appear in Chapter VI. Under Chapter V the appropriate Government and the local authorities are required to ensure that every child with a disability are required to ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years; make an endeavor to promote the integration of students with disabilities in the normal schools; promote setting up of special schools in Government and private sector and make endeavor to equip the special schools for children with disabilities withe vocational training facilities. Section 27 requires the appropriate Government and local authorities to make schemes and programmes for non-formal education to be given to the handicapped persons. Section 28 deals with research for designing and developing new assistive devices, teaching aids, etc. Whereas Section 29 requires the appropriate Government to set up teachers’ training institutions to develop trained manpower for schools for children with disabilities. Section 30 of the Act requires the appropriate Government to prepare a comprehensive education scheme providing for transport facilities , supply of books, grant of scholarships, etc. for the disabled persons. Section 31 of the Act requires all educational institutions to provide or cause to be provided amanuensis to blind students and students with or low vision. There is nothing in Chapter V regarding reservation for students with disability in an educational institution.
5. Chapter VI starts with Section 32 of the Act. Under Section 32 the appropriate Government is required to identify posts in the establishments which can be reserved for the persons with disability. Under Section 33 every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering form i) blindness or low vision; ii) hearing impairment; and iii) locomotor disability or cerebral palsy. Section 34 provides for special employment exchange for the disabled persons and Section 35 deals with the power to inspect record or document in possession of any establishment. Section 36 requires the vacancies not filled up to be carried forward and Section 37 requires the employers to maintain records in relation to the persons with disability employed in the establishment. Section 38 requires the appropriate Government and local authorities to formulate schemes for ensuring employment of persons with disabilities which may provide for the training and welfare of such persons, relaxation of upper age limit, regulating the employment, health and safety measures and the manner in which and the persons by whom the cost of operating the schemes is to be defrayed. Section 39, reliance upon which is placed by the petitioner, reads as under:-
Add educational institutions to reserve seats for persons with disabilities:-
All Government educational institutions and other educational institution is receiving aid from the Government shall reserve not less than three per cent seats for persons with disabilities.
6. This Section is in Chapter VI of the Act which deals with employment of the disabled persons. The only question, therefore, before the Court is whether the provisions of Section 39 will apply for reservation of seats for disabled persons in educational institutions being run by the Government or with the aid of the Government or it will apply to the reservation of posts in such institutions for persons with disabilities. While dealing with this Sections, learned Single Judge of this Court in Naveen Kumar’s case has held as under :-
“In so far as the question of applicability of Section 39 of the Act is concerned, Section 39 Undisputed falls in Chapter 6 which starts with the heading “Employment”. The learned counsel for the respondent is also right that there is another Chapter V which relates to Education. He submits that in case the reservation voice meant for admission this provision should have been inserted in Chapter V meant for education and not for employment. If it is seen from the point of view of a good draftman who is to draft a legislation, the counsel for the respondent may be absolutely justified in submitting that it should have been drafted the way he suggested. But we seen occasionally examples of bad drafting which simply causes some confusion. But bad drafting cannot and should not debar the clear intention of the Legislator and if intention appears to be clear and loud it has to be accepted irrespective of the bad drafting. Section 39 of the Act is being reproduced here for proper appreciation:-
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.
It is obvious from Section 39 that it relates firstly to all educational institutions in view of its heading of the Section and not to Employment Bureaus. Secondly, there is reference to “seats” as against “vacancies” for a post which are required to be reserved by educational institutions. Accordingly, I find it difficult to accept the contention of the learned counsel for the respondent that Section 39 shall not be applicable to educational institutions. All educational institutions are supposed to reserve three per cent seats of course subject to maximum of 50 per cent for all reservations in terms of the Judgment of the Supreme Court. If this three per cent is proportionally required to be compressed, it has to be compressed Along with other reservations, for that would appear only a reasonable approach to provide pro rata reservation to all kinds of reservations for all the classes who are required to be protected and sought to be protected by the legislature in one form or the other.”
7. It is thus clear that the learned Single Judge while interpreting Section 39 of the Act has held that it was a case of bad drafting but bad drafting cannot and should not debar the clear intention of the legislature and if intention appears to be clear and loud, it has to be accepted irrespective of the bad drafting. According to the learned Single Judge, it was obvious from Section 39 that it related to seats as against vacancies for a post which are required to be reserved by educational institutions.
8. Another judgment on which reliance has been placed by the petitioner is the judgment of the Andhra Pradesh High Court in Writ Petition No. 10324/99 titled as the A.P.Federation of the Blind Vs. Registrar, Andhra University. The Andhra Pradesh High Court in this judgment has also held that in view of Section 39 of the Act, the respondents were bound to provide 3% reservation to the persons with disabilities.
9. With due respect to the learned Single Judge of this Court who has delivered judgment in Civil Writ No.4657/2000 and the Andhra Pradesh High Court. I have not been able to reconcile myself with the views expressed by the Hon’ble Judges in these judgments.
10. As already mentioned above, Section 39 appears in a Chapter with a heading “Employment”. There is a special chapter with the heading “Education”. In case, the intention of the legislature was to provide for reservation to the handicapped persons in Government educational institutions or other educational institutions receiving aid from the Government, the provision was required to be made in Chapter V and not in Chapter VI deals with employment for the handicapped persons. Though the title of a Chapter in a statute may not be a determining factor regarding the interpretation of the provisions of a Section in the Chapter, however, the title certainly throws considerable light upon the meaning of the Section. The title of a chapter is an important aid to construction. Had there been no chapter with Education as a heading, it might have been said that Section 39 would apply to reservation in seats for persons with disabilities, however, since the legislature in its wisdom has provided separate chapters both for education and employment, assistance can be taken from the heading (title) of the Chapter to interpret Section 39 of the Act. While it is true that in Section 39, the word “Seats” has been mentioned in place of posts or vacancies, however, if we read down seats as posts, the Section will be read in harmony with other Sections in the chapter. In my view, the only interpretation that can be given to Section 39 is that all Government educational institutions and other educational institutions receiving aid form the Government shall reserve not less than 3% posts for persons with disabilities. In my opinion, there is no other way to read Section 39 if this Section is to continue to remain in Chapter VI of the Act. In case, Section 39 is to be read to mean that 3% seats in an educational institution are to be reserved for persons with disabilities, the Section is a mis-fit in Chapter VI and cannot be read in harmony with other Sections of the Chapter. In my opinion, the legislature has consciously included Section 39 in Chapter VI of the Act so as to provide reservation in posts for handicapped persons. It may not be possible for reservation of seats in an educational institutions because the student may be so handicapped that he is not in a position to undertake and pursue the course in view of its requirements in the syllabus and it will, therefore, be a futile exercise to reserve seats for the handicapped persons. To become a Doctor, requires a person to be physically fit in every respect to be of service of patient. It may not be possible for a person with disability to serve the general public as a Doctor and may be it was for this reason that the legislature did not provide for any reservation of seats in educational institutions. But in case a person despite being disabled has attained a particular qualification, the legislature has thought it fit to reserve 3% posts for such persons at least in those institutions which are being run by the Government or with the aid of the Government where they are eligible to be appointed because of the qualification attained by them.
11. I am, therefore, of the opinion that Section 39 will apply only to posts and not to seats in an educational institution. Since I am not in agreement with the views expressed by the learned Single Judge who has delivered judgment in Civil Writ No. 4657/2000, it would be appropriate that this matter is placed before a larger Bench for an authoritative pronouncement on this subject.