- (1.) SUNIL Ambwani, J. Heard Shri R. C. Maurya, learned counsel for petitioner and Shri Mahendra Pratap for respondent Nos. 2 and 3. Learned standing counsel appears for State respondent.
(2.) THE parties have exchanged affidavits. With their consent the writ petition was heard, and is decided at the admission stage. The petitioner belongs to other Backward Class (Kurmi) (O. B. C.) category and is a physically challenged person since childhood. He suffers from physical disability in the lower limbs assessed between 50-70% and falls in the category of 'physically disabled person'. The petitioner passed High School Examination-1996 in first division from Secondary Education Board the Intermediate Examination, 1999 in first division and was thereafter admitted to Bachelor of Dental Surgeon (B. D. S.) Degree Course in U. P. King Georg's University of Dental Sciences, Lucknow in the year 2001 and has passed final examination on 29. 3. 2006. The Special Medical Board constituted by the Director, Medical and Health, U. P. has certified him to be physically disabled person, entitled to pursue medical studies. He is now seeking admission to M. D. S. Course. By a Government order dated 13. 9. 2006, Lala Lajpat Rai Memorial Medical College, Meerut was appointed as the Coordinator for conducting 'u. P. Post Graduate Medical Entrance Examination, 2007' (U. P. P. G. M. E. E.-2007 ). The brochure published by the University provided for the procedure of entrance examination. The written test was held on 4. 2. 2007. The petitioner appeared in the entrance examination with Roll No. 20472 and secured general category rank (147), O. B. C. category (29), and O. B. C. physically handicapped category rank (1 ). He prepared a bank draft of Rs. 2,500 in favour of Director General, Medical Education and Training, U. P. , for counselling on 6. 4. 2007. The petitioner was enrolled in the counselling on 5. 4. 2007 by depositing Rs. 200. He was present throughout the day of counselling on 6. 4. 2007 but was not called by the committee. It is only when the entire counselling session was over, that the counselling committee orally informed him that since there are only 12 seats in M. D. S. in King George's University, which is only college offering M. D. S. course, there is no seat reserved or available for him in the category of O. B. C. belonging to physically disabled person. Aggrieved the petitioner has filed this writ petition.
(3.) SHRI R. C. Maurya, learned counsel for petitioner submits that 3% of the total 351 P. G. seats will be 10. 53 seats, i. e. , 11 seats and not 9 seats. In case 351 seats in M. D. /m. S. Diploma holder and 12 seats for M. D. S. are clubbed together, then there will be a total of 366 available seats and that the last seat will fall to the category of physically handicapped on the roster point. Thus, total 11 seats had to be provided to the physically disabled persons. The respondents have acted illegally in allotting only 9 seats to the physically disabled persons. In the alternative he submits that even if K. G. Dental Sciences University is treated as a separate unit, the respondents were required to allot at least one seat in every three years to physically disabled persons and that after 1995 no seat was allotted to physically disabled person. This year at least one seat ought to be allotted to the physically disabled person. By the Government order dated 29. 9. 2006 the reservation has to be applied by clubbing the total seats of post graduate course in Government Medical Colleges, King Georges Medical University and King Georges Dental Sciences University. In substance SHRI Maurya submits that the M. D. S. course should not be separated artificially for applying reservation to the available seats and that clubbing 12 seats of M. D. S. course to 351 seats. 3% reservation will come to 11 and not 9 seats and further with the enforcement of (The) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (In short the Disabilities Act, 1995) (Act No. 1 of 1996) the seats should be allotted to physically disabled candidates by clubbing the seat on yearly basis. He submits that the failure to apply reservation every year will virtually deprive the physically disabled candidates from horizontal reservation forever. The respondent-University, which conducted the U. P. Post Graduate Medical Entrance Examination and carried out the counselling, has relied upon Government order dated 29. 9. 2006 providing for the manner in which the 3% reservation for disabled persons has to be achieved in the selections. The Government order provides for 3% reservation to disabled persons, who are suffering from locomotor disabilities in terms of the M. C. I, guidelines and the Disabilities Act, 1995. The reservation is to be horizontal as provided in the case of Combined Pre Medical Test. Thereafter the Government order provides for identifying the seats for such reservation as follows: " (1) The reservations of candidates are made in the Government Medical Colleges/k. G. Medical University and K. G. Dental Science University in the State in the post graduate courses in accordance with the Government order No. 2900/sec- 14/five-96-100/96 dated 9. 7. 1996. According to this Government order after the seats are identified in accordance with applicability of roster for unreserved, Scheduled Caste/tribe and Other Backward Classes in each category of these seats. According to the Government order every 33rd seat will be identified for the physically disabled candidate with locomotor disorder and in this manner the candidates in the category of disability will be allotted such identified seats for disabled persons through counselling. If any seat of the physically disabled category remains vacant it shall be added in the concerned category in the second counselling and (2) For the eligibility of the candidates in the disabled category a special medical board will be constituted by the Director General, Medical and Health in any Government Medical College, before which the candidate of the disabled category will appear and obtain locomotor disorder disability certificate in accordance with specified guidelines of the M. C. I, and such candidates will get benefit only after obtaining such disability certificate. No other certificate by any officer will be admissible. The same arrangement is applicable in C. P. M. T. Examinations. " (Translated for Hindi ).;