Judgment · High Court · 2012

#2. Per contra, the respondent No. 2, the Director of Medical Education, Ass am has filed an affidavit-in-opposition, inter alia, disclosing that during the admission process of the writ petitioner consequent to her selection in the Comb ined Entrance Examination, the Principal, Jorhat Medical College constituted a M edical Board which examined the candidates for their medical fitness and the sai d Medical Board found the writ petitioner unfit for admission into MBBS Course d ue to her bilateral sensory neuronal deafness (Right ear 60%, Left ear 77%). It is the stand of the respondents that in terms of the Admission Rules (Regulation for Admission of Undergraduate Students) Rules 2007 (amended upto 2012), and th e Medical Council of India guidelines, a candidate must be found physically fit by the Medical Examination Board at the time of admission. The respondents have also relied upon a Medical Council of India’s circular dated 14.07.2000 containi ng the guidelines of the said Council for filling up of reserved seats for perso ns having locomotor disabilities in Medicine Courses. Quoting a case decided by the Hon’ble Delhi High Court (Rekha Tyagi -Vs- Vice Chancellor, University of De lhi and others) wherein it was held that section 39 of the Persons with Disabili ties (Equal Opportunities, Protection of Rights and full Participation) Act, 199 5 (for short, the Act 1995) has no application for reservation of seats in educa tional institutions as the said section falls under the Chapter (cid:28)Employment (cid:29). Th e Medical Council of India further noted that the said judgment was reversed by the Hon’ble Supreme Court of India mandating reservation of seats in favour of p ersons suffering from physical disabilities, and that the Medical Council of Ind ia had decided stipulation of benchmarks/degrees of disability for allowing stud ents suffering from disabilities to get admission into Medical College. However, the said benchmark fixed by Medical Council of India apparently relates only to locomotor disabilities. The circular further provides that candidate seeking be nefit of reservation has to present him/herself before Medical Board and obtaine d valid disability certificate from Medical Board which is not more than 3 month s old from the date of submitting application for admission in reserved categori es for disabled candidates. It is in terms of this Medical Council of India guid elines that the Medical Board conducted thorough examination including Audiogram which revealed the gross impairment of hearing of the writ petitioner.

#3. I have heard Mr. BD Das, learned Senior counsel assisted by Mr. HK Sarma , Advocate, appearing for the petitioner. Also heard Mr. D Saikia, learned Stand ing counsel, Health assisted by Mr. B Gogoi, Advocate for respondent Nos.1, 2 an d 3 and Mr. MR Pathak, learned Standing counsel, Education Department for respon dent Nos.4 and 5. There is no dispute at the bar regarding the eligibility of the writ pet 4. itioner to get admission into the MBBS courses in terms of her educational quali fications, she having selected for the MBBS course and even being short listed f or admission. The fact regarding her (cid:28)hearing impairment (cid:29) of 60% in right ear an d 77% in left ear is also an admitted fact. It is also the stand of the responde nt authorities that the Writ petitioner has been hitherto denied admission due t o her aforesaid ’hearing impairment’ and that the respondent authorities have co nstituted an expert committee to asses the degree of hearing loss of the writ pe titioner requesting the writ petitioner to appear before such expert committee w hich was however not adhered to by the writ petitioner. It is also stated by the respondent No. 2 on oath that a seat has been kept vacant at Jorhat Medical Col lege, Jorhat in the MBBS course for the session 2012 under Unreserved Category.

#5. The question that requires to be answered now is as to whether the writ petitioner can be denied admission into the MBBS course merely because of her ’h earing impairment’ and can she be subjected to further medical tests to qualify herself for admission even after her selection? The right of a person suffering from disability is no more a concept of 6. mere equity or good conscience. It is now a set of enforceable legal rights in t erms of the provisions of the Act 1995. Hearing impairment falls within type (iv) of the term ’Disability’ as defined un der section 2(i) of the Act 1995. The term ’hearing impairment’ has been defined under section 2(l) of the same Act meaning (cid:28)loss of sixty decibels or more in t he better year (sic) in the conversational range of frequencies. (cid:29). Thus the peti tioner with her ascertained degree of hearing impairment falls within the defini tion of (cid:28)person with disability (cid:29) within the meaning of section 2(t) of the Act 1 995. Section 39 of the Act 1995 mandates as follows : (cid:28)39. All educational institutions to reserve seats for persons with disabilities - All Government educational institutions and other educational institutions re ceiving aid from the Government, shall reserve not less than three percent seats for persons with disabilities. (cid:29)

#7. The applicability and ambit of the aforesaid section 39 of the Act 1995 has been subjected to judicial interpretation by the Hon’ble Supreme Court of In dia in the case of All Kerala Parents’ Association [of the] Hearing Impaired -ve rsus- State of Kerala (C.A. No. 6120 of 2001 decided on 11.09.2002). In the back drop of a decision by the Kerala High Court holding that section 39 occurring in Chapter VI of the Act dealing with Employment, the expression ’seat’ in section 39 would mean (cid:28)posts (cid:29) in the question of reservation posts for appointment in E ducational Institutions and would not arise for reservation of seats in Educatio nal Institution; the Apex Court laid down the law at paragraph 3 in the followin g terms : (cid:28)3. The aforesaid section 39 unequivocally deals with the question of reservatio n of seats for persons with disabilities in educational institutions of the Gove rnment, as well as institutions receiving aid from the Government. The language is clear and unambiguous, which itself indicates the legislative intent. It is w ell settled that when the language of any statutory provisions is clear and unam biguous, it is not necessary to look for any extrinsic aid to find out the meani ng of the statute inasmuch as the language used by the Legislature is the indica tion of the legislative intent. We fail to understand as to how and on what prin ciples of construction the High Court has given a construction to the provisions of Section 39 not only by doing violence to language of Section 39, but also re writing the provisions of Section 39. If Section 39, as has been construed by th e High Court, would be interpreted to mean it relates to employment merely becau se the provision occurs in the Chapter VI dealing with employment then the (cid:28)educ ational institutions (cid:29) would have to be interpreted to mean the Government post a nd the question of receiving aid from the Government would not arise at all. Nat ural and ordinary meaning of words should not be departed from unless it can be shown that legal context in which the words are used requires a different meanin g. We have therefore no hesitation to come to the conclusion that the High Court was wholly in error in construing Section 39 of the Act to mean it relates to r eservation in Government employment and not in relation to admission of students with disabilities in the Government institutions as well as educational instit utions receiving aid from the Government. Further, reservation in Government emp loyment is provided under Section 33 of the Act. We, therefore, set aside the i mpugned judgment of Kerala High Court and hold that Section 39 deals with the r eservation of seats for persons with disabilities in Government educational Inst itutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with. (cid:29)

#8. Subsequently, in the case of Dr. Raman Khanna -versus- University of Delhi, a Single Bench of Delhi High Court by a judgment and order dated 11.08.2003 repor ted in 2003 VAD Delhi 343, while dealing with the question as to whether for ens uring the reservation in admission to the Medical Courses is made available to d eserving candidates there shall be modifications in the stipulations laid down b y the Medical Council of India in its guidelines, i.e. 40% to 60% (cid:29), has held tha t it is advisable that the authorities should ensure that horizontal method of r eservation is implemented rather than the vertical or additive method of reserva tions. It was also held that the disability quota cannot be extinguished even pa rtially and cannot lapse in favour of any other category. It was held that minim um 3% of seats must be reserved for physically handicapped to be distributed amo ng any or all of the sub-categories, as the case may be.

#9. In the background of the peculiar fact of this case, the law laid down b y a Division Bench of Gauhati High Court in the case of Anju Talukdar and Others -versus- State of Assam and others [2009 (2) GLT 185] can be cited for pointed beneficial guidance. Hon’ble Chelameswar C.J. (as he was then) speaking for the Division Bench while dealing with the legality of a provision of qualifying the qualification criteria of admission to paramedical courses in the State of Assam in respect of 3% reservation of seats in favour of persons with locomotor disab ility thereby limiting the scope of the said reservation to and within (cid:28)Only the persons with Locomotor disability of lower limbs and having between 50% to 70% Apart from that when the language of Section 39 of the Act, 1995 is clea of disability shall be eligible for this Quota (cid:29) had held as follows : (cid:28)15. r and categoric that the benefit of reservation should extend to all categories of persons with disabilities, which by definition under the Act recognizes seven categories of disabilities, denying the benefit also appears to us to be wholly illegal in the absence of any legally tenable justification, which justificatio n if exists should have been placed before this Court by the Medical Council of India as it is supposed to be an expert technical body dealing with those areas (cid:29) . (cid:28)16. Coming to the question of prescription of 50% to 70% disability which in tu rn is confined by the impugned advertisement to be disability of lower limbs is also plainly contrary to the language of the enactment and therefore void. Even the guidelines issued by the Medical Council of India on 14.07.2003 do not appear to have considered this question in the context of paramedical co urses. Looked at any angle, the impugned notification, insofar as it restricts t he benefit under the Act, 1995, is wholly unsustainable. We, therefore, direct t he respondents to consider the cases of the candidates falling under any one of the seven categories of disabilities recognized under the Act, 1995 for admissio n to the various courses covered under the impugned notification against the 3% of the total number of seats sought to be filled up. Goes without saying that th e best amongst the candidates with disabilities falling under each one of the se ven categories are entitled for admission (cid:29).

#10. The aforesaid law was laid down in no uncertain terms negating the validity of the guidelines issued by the Medical Council of India on the face of the Medi cal Council of India having not placed any material before the Court inspite of receipt of notice. In the backdrop of the rights of reservation accruing to (cid:28)per sons with visual and hearing impairment (cid:29) as referred to in Paragraph 12 of the j udgment in the case of Anju Talukdar (supra), the law laid down in Paragraph 14 thereof can be beneficially quoted as under : (cid:28)14. Even today it is not very clear whether there is anything in law wh ich excludes either a person with visual impairment or hearing impairment from s eeking admission to a medical course in this country not against any reserved qu ota but purely on merit, that is, on the basis of marks secured by such a candid ate in the qualifying examination. In the absence of such restriction (we presum e so in view of the lack of assistance by the Medical Council of India to enligh ten us in this regard) we have no option but to reach the conclusion that denyin g the benefit to the above mentioned two categories of persons with disabilities under the Act, 1995 is illegal (cid:29). Following the law laid down by the Apex Court in All Kerala Parents’ Ass 11. ociation [of the] Hearing Impaired (supra) and Division Bench of Gauhati High Co urt in the case of Anju Talukdar (supra) it can be definitely concluded by this Court that statutory mandate of providing reservation to physically disable pers ons for admission into educational institutions as provided under section 39 of the Act 1995 cannot be made subject to restrictive interpretation by the executi ve or for that matter any authority below the status of the Parliament so as to dilute, marginalize or otherwise impair the absolute right granted to the physic ally disabled persons by the Central Legislation. In other words, the terms of s ection 39 of the Act 1995 cannot be rewritten by the respondents in the instant case even with the aid of the circulars issued by the Medical Council of India.

#12. But the facts of the case at hand is little different. The Writ petition er here is not claiming the benefit of reservation for being a person with disab ility. Inspite of suffering the physical disability of ’hearing impairment’, she by dint of her own merit has competed with general candidates and have secured her position as a general candidate entitling her for admission into MBBS course s. The plea of the respondents is that inspite of her having qualified in the En trance Examination on merits, the Writ petitioner has to submit herself for furt her assessment as regards the degree of her hearing loss so as to be certified b y the experts as to whether she is fit for pursuing the MBBS Course.

#13. If the intent of the legislature framing the Act, 1995 is sought to be d eciphered in the statements of objects and reasons as well as the preface of the Act it will be unfailingly found that Chapter V (Education) and other provisio ns of the Act has been framed to remove any discrimination against persons with disabilities in the sharing of developmental benefits vis-à-vis non disabled per sons, development of strategies for equalization of opportunities for persons wi th disabilities and to make special provision for integration of persons with di sabilities into social main stream. The intent of the legislature has further be en crystalised in the following tenets of section 30 of the Act:- (cid:28)30. Appropriate Governments to prepare a comprehensive education scheme prov iding for transport facilities, supply of books, etc. - Without prejudice to the foregoing provisions, the appropriate Governments shall by notification prepare a comprehensive education scheme which shall make provisions for - & & & &(g) abiliteis ; restructuring of curriculum for the benefit of children with dis (h) restructuring the curriculum for benefit of students with heari ng impairment to facilitate them to take only one language as part of their curr iculum (cid:29).

#14. Hence the mandate of the nation is that it is the educational institutio ns which have to restructure the educational system and curriculum so as to meet the requirements of the students suffering from disability. It is not for the s tudents suffering from disability to come up and struggle to cope up with the ex isting curriculum or educational system which is by and large designed only for general students without specific and special needs. To deny a student the right to education on the plea of his/her physical disability being the impediment fo r availing the course of study will be an impermissible negative interpretation of the welfare legislation.

#15. Having held as above there is no escape from the further inevitable conc lusion that ’hearing impairment’ of writ petitioner per se cannot subject her to any disqualification for getting admission into MBBS courses which she is other wise entitled to by dint of her selection in terms of merit. The intention of th e authorities to subject her to further medical tests so as to judge her ability to undergo the Medical Courses is wholly impermissible in law being grossly vio lative of the mandates of Act, 1995. In the backdrop of a scenerio when a studen t is unable to compete with the general candidates has been given the right of r eservation under the Act, 1995 in addition to a mandate on the State to restruct ure the curriculum of studies for the benefit of students with disabilities incl uding ’hearing impairment’, a permission to the respondents to subject the writ petitioner who is a person suffering from disability but has competed as a gener al candidate securing a position amongst the general candidates, to undergo furt her physical tests to conform to the standard of curriculum and educational syst em framed by the respondents largely keeping in view the general candidates with out special needs will amount to negation of the mandates of the Act, 1995 and i mpermissible in the touchstone of Article 14 of the Constitution. The mandate of the Act, 1995 rather calls upon the Respondents to restructure the curriculum f or the benefit of students with ’hearing impairment’ so as to facilitate such st udents to avail of the mandates of equalization of opportunities.

#16. Accordingly, this writ petition is allowed. Interim order passed earlier is made absolute. The respondents, especially, the respondent Nos. 2 and 3 are directed to offer admission to the writ petitioner immediately in the seat kept vacant, as indicated in paragraph 5 of the affidavit-in-opposition filed by the respondent No. 2. The writ petitioner will not be subjected to any further medic al tests so as to qualify her for getting the admission.

#17. Further respondent Nos.4 and 5 are directed to return the original certi ficates etc., forthwith submitted by the petitioner at the time of admission in the Engineering College, keeping the photostat copies thereof in order to facili tate her to take admission in Jorhat Medical College.

#18. o costs. In the facts and circumstances of the case, there shall be no order as t

#19. While parting with this case, I am constrained to pass the following dir ection to respondent No. 1 to comply with the mandatory provision laid down in s ub section (g) and (h) of section 30 of the Act, 1995 without any deviation. This direction is particularly issued in view of reservation of 3% seats for the persons with disability in all Government run and aided educational ins titutions and programme.