Decided on January 30,2003

BENNY Appellant


Jawahar Lal Gupta, C.J. - (1.) IS the action of the State Government in not making any reservation for the handicapped persons for admission to the Post Graduate Courses in Medicine, Surgery etc. violative of S. 39 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995? This is the short question that arises for consideration in this set of three cases. Learned counsel for the parties have referred to the facts in W.A.No.3660 of 2001. These may be briefly noticed.
(2.) THE appellant is physically handicapped. He was afflicted with Polio. It had left him with a handicap of 60% in the legs. Despite the handicap, the appellant had graduated in Medicine from the Calicut University in 1994. He had completed the requisite internship in November 1995. On December 5, 1995 he was registered as a Medical Practitioner with the Medical Council. In April 2001, the State Government published a prospectus for admission to the Post Graduate Degree/Diploma Courses in Medical Sciences. While issuing this prospectus, reservations were made for various categories like Scheduled Castes, Scheduled Tribes, Ex- servicemen and Service candidates. However, no reservation was made for the physically handicapped persons. The appellant submitted his application form. He did not claim the benefit of any reservation. However, in June 2001, he filed a petition under Art. 226 of the Constitution complaining that the State Government had failed to carry out its statutory obligation under the provisions of the 1995 Act. This action was arbitrary and violative of Art. 14 of the Constitution. Thus, he prayed that a writ of mandamus be issued directing the respondents to modify the prospectus and to make a provision of "3% reservation for physically handicapped in the Medical P.G. Degree/Diploma Courses 2001..." He further prayed that the respondents be directed to consider his application in the quota for the physically handicapped. The matter was posted for hearing before a learned Single Judge. His Lordship, relying on the decision of a Division Bench in State of Kerala v. Mary Joseph (2001 (3) KLT 26) dismissed the writ petition. In Mary Joseph's case, the Bench had ruled that S.39 appeared in Chapter 6 of the Act. This Chapter primarily deals with employment. Thus, the reservation for the physically handicapped had to be made only at the time of recruitment. No provision for reservation was required to be made under S.39 for the purpose of admission to Government or aided educational institutions. The fact, which deserves mention here is that, this view was taken despite the fact that S.39 specifically provided for reservation in "all Government educational institutions and other educational institutions receiving aid from the Government..." However, the learned single Judge was bound by the decision of the Division Bench. Resultantly, the Writ Petition was dismissed.
(3.) AGGRIEVED by the order of the learned single Judge, the writ petitioner filed the appeal. When the matter was posted before a Division Bench, reference was made to the decision in Mary Joseph's case. The correctness of the view was challenged. The Division Bench, after hearing the learned counsel, felt that if the interpretation as placed in Mary Joseph's case was upheld, S. 39 "would be rendered otiose and nugatory." Thus, the Bench ordered that the matter be placed before the Chief Justice for constitution of a larger Bench. This is how the matter has been placed before this Bench. Mr. Abraham Vakkanal, learned counsel for the appellant has pointed out that the Division Bench of this Court, while dealing with the issue of S. 39, had decided a number of cases together. One of these was State of Kerala v. Mary Joseph (supra). The judgment of the Division Bench was challenged before the Supreme Court by one of the parties. The matter was considered by their Lordships of the Supreme Court in All Kerala Parents Association v. State of Kerala (2002 (3) KLT 423 (SC)). The Apex Court had reversed the decision of the Division Bench. Resultantly, the benefit of reservation under the Act is available for the purpose of admission to educational institutions. On this basis, the counsel submits that the relief as prayed for by the appellants and the writ petitioner in this set of three cases deserves to be granted.;

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