Full Judgment
P. Shanmugam, J.
1. The selection for one seat each to the M.B.B.S. and B.D.S. courses from among the 'physically handicapped' category is under challenge. The question that arises for consideration is whether the 'degree of disability' is a reasonable method of selection from among the physically handicapped. The relevant portion of the prospectus for M.B.B.S. on this aspect is extracted as follows:
One seal for the 1st M.B.B.S. course will be reserved for orthopaedically and other handicapped candidates who are having more than 40% disability and are suitable for undergoing medical education and otherwise eligible of admission, as per Clause I. Selection will be made on the basis of the degree of disabilityassessed by the clinical experts associated with a committee constituted and approved by the committee at the time of interview and not on the basis of marks obtained by the candidates at the Pre-Degree or equivalent examinations or the entrance test. Selection will be made by the committee consisting of the Director of Medical Education (Chairman), Joint Director of Medical Education (M) (Convenor), Professor of Physical Medicine & Rehabilitation, Medical College, Thiruvananthapuram and Director and Professor/Professor of Orthopaedics, Medical College, Thiruvananthapuram (Members)'.
2. The petitioner belonged to Scheduled Caste and has a degree of 45% permanent disability as per the certificate issued by the competent authority. The petitioner has secured more than the minimum marks in the subjects in her Pre-degrce examination. Satisfying the eligibility she applied and appeared for the entrance examination for the selection to M.B.B.S. and B.D.S. under handicapped category on 25-6-1994 and was included in the rank list for the interview on 11-10-1994. The select list was published in the Notice Board on 15-10-1994. Copy of which is Ext. P6 has been challenged on the following grounds.
(i) The criteria of selection viz. the degree of disability is unreasonable and arbitrary;
(ii) The selection of 5th respondent is on private influence and consideration and hence illegal.
3. An Administrative Assistant of Directorate of Medical Education, Thiruvananthapuram has filed a counter-affidavit on behalf of the Director of Medical Education. According to the counter, the select list was prepared and approved by the Selection Committee after examination of each candidate where his/her percentage of disability and fitness to undergo the course was assessed. The selection was based on the highest percentage of disability from among those fit to undergo the course.
4. The 5th respondent has filed a counter. He is suffering from Meningo-Myeloeocle with Neurogenic bladder with disabilityabove 60%. Acording to him, the Court cannot sit in judgment over the selection.
5. The 6th respondent has filed a counter. He is suffering from Post-polio residual paralysis of both the lower limbs and his permanent disability is assessed as 50%. According to him the Selection Committee considered the suitability of candidates to undergo the course and it is beyond the jurisdiction of the Court to go into the question of selection.
6. The Government Pleader made available the Minutes of records relating to selection. There were four members in the Selection Committee consisting of Director of Medical Service, Joint Director of Medical Service, Prof, of Phy. Medicine & Rehabilitation and Prof, of Ortheopaedics Medical College, Thiruvananathapuram. It is seen--from the minutes there were 82 candidates. Of these two candidates were rejected by the Commissioner for Entrance Examination, 15 did not report for the interview held on 11th & 12th October, 1994. Four were considered too disabled to undergo the course. From the remaining candidates, the Committee prepared a list after evaluating their percentage of disability and considering their ability to undergo the courses of studies.
7. In the assessment of disability of 'candidates the Committee found the percentage disability of the petitioner and respondent as follows:
Chithra C (petitioner) -- 35%Naveen Philip Mammen(Respondent No. 5) -- 67%Subu R. (Respondent No. 6) -- 65%
8.. The case of the petitioner is that the respondents are not fit to undergo the course as their disability is on the higher side and the finding that the petitioner's disability at 35% is erroneous. In the case of respondent No. 5 it is submitted that he has lost his senses on both legs and as a crawling student he would not be in a position to undergo the strenuous study of Medicine. According to him he would not be in a position to study and perform surgery. It is true that as per Ext. P2 certificate obtained by the petitioner from AssociateProfessor of Department, of Physical Medicine and Rehabilitation, Medical College Hospital, Kottayam her disability is assessed as 45% and as per the certificates produced by respondent No. 5 (Ext. R5(b)) it is over 60% and for respondent No. 6 it is 50% (Ext. R6 (b)). The discrepancy is unexplained, as the assessment it made by a Committee con-stitued for the purpose, in the absence of any contra evidence the assessment made by the Committee has to be accepted as authentic and binding. I have no reason to doubt either their competence or assessment objectively to the effect that respondents Nos. 5 and 6 are fit to undergo the medical courses. They have selected the candidates as per the conditions laid down in the prospectus, viz., based on the degree of disability.
9. The reservation is for handicapped students. The minimum disability required for consideration is 40%. It means that candidates will come under the defintion of 'handicapped' if he suffers 40% disability of his normal function. Thereafter from among those disabled selection is sought to be on the basis of their maximum of disablement but the outer limit is upto his capacity to undergo the course with that maximum disablement. This later portion of norm in my view is not reasonable.
10. Any reservation made by virtue of executive power of State must stand the test of reasonableness, unlike other reservation like 'eminent sportsmen'. Sportsmen are to be selected on the basis of their eminence. But in reservation categories like disabled, Ex-service men, etc. once they are within a particular category, there cannot further differentiation based on their disablement. Thereafter it must be relevant to the selection to the course, i.e. based on their academic performance.
11. A Division Bench of Andhra Pradesh High Court in Registrar, Andhra University v. N. Venkateswarlu, AIR 1984 Andh Pra 248 in some what similar circumstances has taken the view that degree of disability of individual candidates could not enter the field of selection. No weightage on the basis of degree of disability could be given thus picking up amore orthopaedically handicapped candidate.
12. A learned Judge of Punjab and Haryana in Vimish Jain v. Union of India, AIR 1991 Punj & Har 222) has taken the view that when the reservation is for a particular category their inter se merit cannot be ignored on the quantum of handicapness as they constitute one class.
13. I am in respectful agreement with theabove decisions.
14. In Pradeep Jain v. Union of India, AIR 1984 SC 1420 the Supreme Court has held that the effort must always be to select the best and most meritorious students for admission to technical institutions and Medical Colleges by providing equal opportunity to all citizens. The primary consideration in selection of candidates for admission to the medical colleges must therefore be merit. The object of any rule which may be made for regulating admission to medical college must be to select the best and most meritorious student.
15. Since the selection had not taken into account, the interview mark which is normally the criteria for selection, the question of comparison of the relative merit cannot be made. Further the petitioner does not satisfy the minimum requirement of 40% to come under the category of 'handicapped'. No relief can be granted to the petitioner. However, as a person who has got permanent disability of 45% as per the certificate is produced, she is an aggrieved person and is entitled to maintain the writ petition in so far as the third and fourth prayers are concerned. The selection list was publish in the Notice Board on 21-10-1994. The petitioner has preferred the above Original Petition on 28-10-1994. This Court in C.M.P. No. 26485 of 1994 dated 28-10-1994 ordered that the admissions to the handicapped quota will be provisional and would be subject to the result of the Original Petition. As the candidates have been undergoing the medical courses for the past two years and the person who would be eligible for being considered had not challenged the same, this Court at the distantpoint of time would not unsettle the selection based on an erroneous application of reservation.
16. For all these reasons I hold that the provisions of Clause VI (1)(j) and Clause VI (II) of the prosepctus for medical education which prescribes rule of selection based on degree of disability are unconsititutional, unreasonable, abhrary and illegal. T hold that selection of physically handicapped candidates with the minimum disability of 40% must be based on merit and not on the degree of disability.
17. For the reasons stated above, the petitioner is not eligible to be considered under the reservation quota. The Original Petition is disposed of accordingly.