Hence the mandate of the nation is that it is the
educational institutions 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 students suffering from disability to come up and 16
struggle to cope up with the existing 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 for availing the course of study will be an
impermissible negative interpretation of the welfare legislation
IN THE GAUHATI HIGH COURT
WP(C) No.3739/2012
MISS RAJASHREE KHOUND
-Versus-
THE STATE OF ASSAM
Date of Judgment : 13.09.2012
This writ petition has been filed by the petitioner Miss
Rajashree Khound seeking an order from this Court directing the
Respondents to allow her to take admission in MBBS course for
the session 2012 on the basis of her selection in the Combined
Entrance Examination as per the result published on 24.07.2012.
The petitioner has demonstrated academic excellence by way of
securing 89.3% marks in HSLC Examination followed by 86.6%
marks in Higher Secondary (Science). Thereafter she contested
for admission to MBBS/BDS courses in the Medical Colleges of
Assam and Regional Dental College at Guwahati for the session
2012 through the Combined Entrance Examination. The
petitioner secured 186 marks and her rank in the Entrance
Examination is claimed to be 199. In the Educational Notice 3
published showing the names of candidates who appeared for
counseling and selected by a Selection Board thereby allowed for
provisional admission into the First Year MBBS/BDS courses in
the Medical Colleges of Assam and Regional Dental College at
Guwahati for the session 2012, the name of the petitioner
bearing Roll No. 381071 finds place against Serial No. 6 in the
list of “Un-reserved (General Merit)” candidates for Jorhat
Medical College, Jorhat. However, when the petitioner appeared
before the respondent No. 3, the Principal, Jorhat Medical
College, Jorhat for admission in terms of her selection, she was
verbally informed that as she was found suffering from Hearing
Impairment of approximately 69% in the left and 71% in the
right ear, she was not eligible for admission in the Medical
College. This was followed by an application dated 29.07.2012
filed by the petitioner asking the Principal to put in record the
reasons for rejection of admission followed by a representation
filed by her on 30.07.2012 to the Director of Medical Education,
Assam stating that due to her hearing problem she was wearing
hearing aid and that she is quite a normal girl having no physical
disabilities but she is being denied admission inspite of her
selection without giving any lawful reason. The petitioner further
stated that her hearing impairment is of no hindrance for 4
pursuing studies in MBBS course with the aid of modern
sophisticated appliances.
2. Per contra, the respondent No. 2, the Director of Medical
Education, Assam has filed an affidavit-in-opposition, inter alia,
disclosing that during the admission process of the writ
petitioner consequent to her selection in the Combined Entrance
Examination, the Principal, Jorhat Medical College constituted a
Medical Board which examined the candidates for their medical
fitness and the said Medical Board found the writ petitioner
unfit for admission into MBBS Course due 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 the 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 containing the guidelines of the said
Council for filling up of reserved seats for persons having
locomotor disabilities in Medicine Courses. Quoting a case
decided by the Hon’ble Delhi High Court (Rekha Tyagi –Vs- Vice 5
Chancellor, University of Delhi and others) wherein it was held
that section 39 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and full Participation) Act,
1995 (for short, the Act 1995) has no application for reservation
of seats in educational institutions as the said section falls under
the Chapter “Employment”. The 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 persons suffering from physical disabilities, and that the
Medical Council of India had decided stipulation of
benchmarks/degrees of disability for allowing students
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 benefit of reservation
has to present him/herself before Medical Board and obtained
valid disability certificate from Medical Board which is not more
than 3 months old from the date of submitting application for
admission in reserved categories for disabled candidates. It is in
terms of this Medical Council of India guidelines that the
Medical Board conducted thorough examination including 6
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 Standing counsel, Health assisted by
Mr. B Gogoi, Advocate for respondent Nos.1, 2 and 3 and Mr. MR
Pathak, learned Standing counsel, Education Department for
respondent Nos.4 and 5.
4. There is no dispute at the bar regarding the eligibility of
the writ petitioner to get admission into the MBBS courses in
terms of her educational qualifications, she having selected for
the MBBS course and even being short listed for admission. The
fact regarding her “hearing impairment” of 60% in right ear and
77% in left ear is also an admitted fact. It is also the stand of
the respondent authorities that the Writ petitioner has been
hitherto denied admission due to her aforesaid ‘hearing
impairment’ and that the respondent authorities have
constituted an expert committee to asses the degree of hearing
loss of the writ petitioner requesting the writ petitioner to
appear before such expert committee which was however not 7
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 College, 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 ‘hearing impairment’ and can
she be subjected to further medical tests to qualify herself for
admission even after her selection?
6. The right of a person suffering from disability is no more
a concept of mere equity or good conscience. It is now a set of
enforceable legal rights in terms of the provisions of the Act
1995.
Hearing impairment falls within type (iv) of the term
‘Disability’ as defined under section 2(i) of the Act 1995. The
term ‘hearing impairment’ has been defined under section 2(l) of
the same Act meaning “loss of sixty decibels or more in the
better year (sic) in the conversational range of frequencies.”.
Thus the petitioner with her ascertained degree of hearing
impairment falls within the definition of “person with disability”
within the meaning of section 2(t) of the Act 1995. Section 39
of the Act 1995 mandates 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 percent seats
for persons with disabilities.”
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 India in the case of All Kerala
Parents’ Association [of the] Hearing Impaired –versus- State of
Kerala (C.A. No. 6120 of 2001 decided on 11.09.2002). In the
backdrop 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
“posts” in the question of reservation posts for appointment in
Educational Institutions and would not arise for reservation of
seats in Educational Institution; the Apex Court laid down the
law at paragraph 3 in the following terms :
“3. The aforesaid section 39 unequivocally deals with the
question of reservation of seats for persons with
disabilities in educational institutions of the Government,
as well as institutions receiving aid from the Government.
The language is clear and unambiguous, which itself
indicates the legislative intent. It is well settled that when
the language of any statutory provisions is clear and
unambiguous, it is not necessary to look for any extrinsic 9
aid to find out the meaning of the statute inasmuch as the
language used by the Legislature is the indication of the
legislative intent. We fail to understand as to how and on
what principles 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 rewriting
the provisions of Section 39. If Section 39, as has been
construed by the High Court, would be interpreted to mean
it relates to employment merely because the provision
occurs in the Chapter VI dealing with employment then the
“educational institutions” would have to be interpreted to
mean the Government post and the question of receiving
aid from the Government would not arise at all. Natural
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 meaning. 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 reservation in Government
employment and not in relation to admission of students
with disabilities in the Government institutions as well as
educational institutions receiving aid from the Government.
Further, reservation in Government employment is
provided under Section 33 of the Act. We, therefore, set
aside the impugned judgment of Kerala High Court and
hold that Section 39 deals with the reservation of seats
for persons with disabilities in Government educational
Institutions as well as educational institutions receiving 10
aid from the Government, and necessarily therefore the
provisions thereof must be complied with.”
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 reported in 2003 VAD
Delhi 343, while dealing with the question as to whether for
ensuring the reservation in admission to the Medical Courses is
made available to deserving candidates there shall be
modifications in the stipulations laid down by the Medical Council
of India in its guidelines, i.e. 40% to 60%”, has held that it is
advisable that the authorities should ensure that horizontal
method of reservation is implemented rather than the vertical
or additive method of reservations. It was also held that the
disability quota cannot be extinguished even partially and cannot
lapse in favour of any other category. It was held that minimum
3% of seats must be reserved for physically handicapped to be
distributed among 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 by a Division Bench of Gauhati High Court in the 11
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
disability thereby limiting the scope of the said reservation to
and within “Only the persons with Locomotor disability of lower
limbs and having between 50% to 70% of disability shall be
eligible for this Quota” had held as follows :
“15. Apart from that when the language of Section 39 of
the Act, 1995 is clear 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 justification 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”.
“16. Coming to the question of prescription of 50% to 70%
disability which in turn 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 courses. Looked at
any angle, the impugned notification, insofar as it restricts
the benefit under the Act, 1995, is wholly unsustainable.
We, therefore, direct the respondents to consider the
cases of the candidates falling under any one of the seven
categories of disabilities recognized under the Act, 1995
for admission 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
the best amongst the candidates with disabilities falling
under each one of the seven categories are entitled for
admission”.
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 Medical 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 “persons with visual and hearing impairment” as
referred to in Paragraph 12 of the judgment in the case of Anju
Talukdar (supra), the law laid down in Paragraph 14 thereof can
be beneficially quoted as under :
“14. Even today it is not very clear whether there is
anything in law which excludes either a person with visual
impairment or hearing impairment from seeking admission
to a medical course in this country not against any
reserved quota but purely on merit, that is, on the basis of
marks secured by such a candidate in the qualifying
examination. In the absence of such restriction (we
presume so in view of the lack of assistance by the Medical
Council of India to enlighten us in this regard) we have no
option but to reach the conclusion that denying the benefit
to the above mentioned two categories of persons with
disabilities under the Act, 1995 is illegal”.
11. Following the law laid down by the Apex Court in All Kerala
Parents’ Association [of the] Hearing Impaired (supra) and
Division Bench of Gauhati High Court in the case of Anju
Talukdar (supra) it can be definitely concluded by this Court
that statutory mandate of providing reservation to physically
disable persons for admission into educational institutions as
provided under section 39 of the Act 1995 cannot be made
subject to restrictive interpretation by the executive 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 physically disabled persons by the Central 14
Legislation. In other words, the terms of section 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 petitioner here is not claiming the benefit of reservation
for being a person with disability. 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 courses. The plea of the respondents is that inspite
of her having qualified in the Entrance Examination on merits,
the Writ petitioner has to submit herself for further
assessment as regards the degree of her hearing loss so as to be
certified by 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 deciphered 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 provisions of the 15
Act has been framed to remove any discrimination against
persons with disabilities in the sharing of developmental benefits
vis-à-vis non disabled persons, development of strategies for
equalization of opportunities for persons with disabilities and to
make special provision for integration of persons with disabilities
into social main stream. The intent of the legislature has further
been crystalised in the following tenets of section 30 of the
Act:-
“30. Appropriate Governments to prepare a
comprehensive education scheme providing 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) restructuring of curriculum for the benefit of
children with disabiliteis ;
(h) restructuring the curriculum for benefit of
students with hearing impairment to facilitate them to
take only one language as part of their curriculum”.
14. Hence the mandate of the nation is that it is the
educational institutions 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 students suffering from disability to come up and
struggle to cope up with the existing 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 for 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 conclusion that ‘hearing impairment’ of writ petitioner
per se cannot subject her to any disqualification for getting
admission into MBBS courses which she is otherwise entitled to
by dint of her selection in terms of merit. The intention of the
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 violative of the mandates of
Act, 1995. In the backdrop of a scenerio when a student is
unable to compete with the general candidates has been given
the right of reservation under the Act, 1995 in addition to a
mandate on the State to restructure the curriculum of studies
for the benefit of students with disabilities including ‘hearing
impairment’, a permission to the respondents to subject the writ
petitioner who is a person suffering from disability but has 17
competed as a general candidate securing a position amongst the
general candidates, to undergo further physical tests to conform
to the standard of curriculum and educational system framed by
the respondents largely keeping in view the general candidates
without special needs will amount to negation of the mandates of
the Act, 1995 and impermissible in the touchstone of Article 14
of the Constitution. The mandate of the Act, 1995 rather calls
upon the Respondents to restructure the curriculum for the
benefit of students with ‘hearing impairment’ so as to facilitate
such students 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 medical tests so as to qualify her for getting the
admission. 18
17. Further respondent Nos.4 and 5 are directed to return the
original certificates etc., forthwith submitted by the petitioner
at the time of admission in the Engineering College, keeping the
photostat copies thereof in order to facilitate her to take
admission in Jorhat Medical College.
18. In the facts and circumstances of the case, there shall be
no order as to costs.
19. While parting with this case, I am constrained to pass the
following direction to respondent No. 1 to comply with the
mandatory provision laid down in sub 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 institutions and programme.
JUDGE
Shivani/Mdb
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