Decided on September 14,2012

Ms. Mamta Rana Appellant
State of Uttarakhand and others Respondents


Sudhanshu Dhulia, J. - (1.) THE petitioner is a candidate for admission in M.B.B.S. course in two Government Colleges, which are in the State of Uttarakhand, namely, Dr. Sushila Tiwari Medical College, Haldwani and Veer Chandra Singh Garhwali Government Medical College, Srinagar. The exam for these colleges was conducted by Govind Ballabh Pant University of Agriculture & Technology Pantnagar, District Udham Singh Nagar, and the examination is known as Uttarakhand Pre Medical Test 2012 (hereinafter referred to as UPMT 2012). The petitioner belongs to a Scheduled Tribe community, namely, "Tharu", which is notified as such in the State of Uttarakhand. The petitioner is also a permanent resident of Uttarakhand. Moreover, the petitioner is also a physically challenged candidate, having disability of 45%. A certificate for which has been annexed as annexure No. 1 to the writ petition, which is not in dispute.
(2.) IN the recent examination for M.B.B.S. course conducted by respondent No. 3, there was a horizontal reservation of 3% for physically challenged candidates. The total number of seats for M.B.B.S. course were 170 out of which 4 were reserved for the physically challenged category. In the said examination, the petitioner procured 103 marks out of 200 marks. The cut off marks required for eligibility for the M.B.B.S. course is 50% for the General category and 40% for the reserved category candidates. The petitioner marks were much more than the minimum qualified marks. However, the petitions/could not get admission in the reserved quota of Scheduled Tribes, therefore, she claimed reservation under the physically challenged category for which 4 seats were reserved. The contention of the petitioner is that while giving reservation to the physically challenged category the respondents though granted admission to one Imran Alam under the General Physically challenged category, in spite of the -fact that he had lower marks than the petitioner as he (Imran Alam) obtained 101 marks out of 200 marks whereas the petitioner obtained 103 marks out of 200 marks. A counter affidavit has been filed on behalf of respondent No. 2 i.e. Director General, Medical Health & Family Welfare, Government of Uttarakhand, Dehradun. In the counter affidavit, the respondent admit the claim of the petitioner but have justified their stand for not granting the admission to the petitioner as she is a candidate belonging to Scheduled Tribe as according to the respondent No. 2 who is Director General, Medical Health & Family Welfare, Government of Uttarakhand, Dehradun and the Chairman of the Selection Committee, there is no reservation such as "handicapped Scheduled Tribe", and since petitioner is a Scheduled Tribe candidate she cannot be given admission under the handicapped category. In other words all four seats reserved for handicapped are for such handicapped candidate who belong to General category. The precise stand of respondent No. 2 is reflected by the contents of the counter affidavit filed by him must be reproduced. In para (B) and para 2(C) of the counter affidavit filed by respondent No. 2 it has been stated as under: - B That it is submitted that the petitioner belongs to the SC category and falls sub -category of handicapped. It is submitted that on the date of UPMT Counseling i.e. 24.08.2012 there was no vacant seat of handicapped sub -category of Scheduled Tribe, consequently, it was not possible to allot the seat of MBBS, to the petitioner, under the handicapped sub -category of Scheduled Tribe. C. that it is also worth mentioning here that in view of the Government Order dated 2/8/2011 and Government Order dated 24/8/2012 there is no provision for allotting the seat of any category in its sub -category of handicapped persons, in view of the mandate of the aforesaid Government Orders that a person would be given admission against its own sub -category in the reservation category such as no person who belongs to handicapped sub -category in a particular category cannot be given admission in any other category for example if a seat is vacant, under the handicapped quota of general category, the handicapped of Scheduled Caste or Scheduled Tribe category candidates cannot be given admission against that the seat even if the candidates secures the higher quality points marks and vise versa.
(3.) THE stand taken by the respondent in not granting the reservation benefit of a handicapped candidate to the petitioner is wholly -incorrect approach, which is violative of law. Before dealing with the principle of reservation we must first refer to the legislation enacted by the Parliament in the year 1995 known as "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to "Disability Act"). The Disability Act in short calls for an affirmative action from the Government for grant of various benefits to disable persons in order to remove the hardships being faced by them. The entire provision of the Act may not be referred, but Section 39 of the Disability Act in particular needs to be referred which reads under: - 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 per cent seats for persons with disabilities. Therefore, the reservation of 3% in education institutions is not being made by the respondents as a matter of charity to those who are disabled but it is being done, as it is now the mandate of law.;

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