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P. RAJAPRABAHARAN versus THE SECRETARY TO GOVERNMENT

High Court of Madras

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P. Rajaprabaharan v. The Secretary to Government - W.A. No.63 of 2005 [2005] RD-TN 217 (21 March 2005)



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




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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