Suresh K. Bhat Vs. University of Mangalore and anr. - Court Judgment

Excerpt:
- labour & services. disciplinary proceedings: [subhash b. adi, j] disciplinary proceedings pending criminal case for the offence punishable under sections 468,471,406,408 of ipc permissibility held, the departmental enquiry being a distinct proceedings under the relevant statute and the criminal case is tried based on the evidence that would be led in proof of the charges. the amount of standard of proof and the burden of establishing the charge in the criminal case is different from the burden of proof in establishing the charge in the departmental enquiry, unless it is shown that, it involves complicated questions of law or fact, which requires the adjudication by the criminal court and till then the proceedings under departmental enquiry cannot be proceeded, then only the case requires as to whether the departmental proceedings to be stayed or not. on facts, held, there are four charges alleged in the departmental enquiry. whereas the charge sheet is filed for the offences punishable under sections 460,471,406,408 and 409 of i.p.c., and the allegations in support of the said charge is that, the petitioner has committed a criminal breach of trust, forgery and cheating, whereas the charge alleged in the departmental enquiry is that, making xerox copy of the tickets and selling them, collecting money causing loss of revenue to the corporation. there is no error in proceeding with the departmental enquiry simultaneously with the criminal case. - 4. for proper appreciation of rival contentions, it is better to extract regulation. a scar on the face, a torn ear with perfect hearing, a torn nose with no breathing trouble, amputation of a toe or a finger do not fall within the purview of 'physically handicapped' and it is in this view of the matter, syndicate has concluded that infirmity referred to in certificate produced does not constitute 'physical handicap' so as to make reservation in favour of petitioner.order1. petitioner relying on sub-cl. (3) of regulation 4 of mangalore university post graduate degree and diploma (selection for admission) to m.b.a. course has sought for issue of a writ in the mature of mandamus directing respondents to select and admit him to m.b.a. course for the academic year 1986-87. 2. in support of the plea that he is physically handicapped he has produced medical certificate issued by dr. m. k. jayanandan. civil surgeon grade-11 government hospital, kasargod (annexurea). syndicate of mangalore university has not considered infirmity mentioned in certificate as physical handicap. the decision as extracted in statement of objections reads thus: - '......sri suresh k. is not eligible to be considered under physically handicapped category as cleft palate is not a kind of handicap to be considered under that category ............' 3. sri naik, learned counsel for petitioner contended that university has made reservation of seats in favour of sportsmen and physically handicapped as contemplated in regulation 40) of the regulations and petitioner is entitled to be admitted in that reserved category. he further contended that denial of admission or selection based on degree of infirmity is impermissible and when once authority reaches conclusion that there is some sort of infirmity candidate as of right is entitled to an admission. sri p. viswanatha shetty, learned counsel for university submitted that syndicate which consists of three eminent doctors as members, including director of medical education, have opined that infirmity referred to in certificate does not tantamount to physical handicap and in view of this conclusion there is no justification to interfere in exercise of its jurisdiction under art. 226 of the constitution of india. 4. for proper appreciation of rival contentions, it is better to extract regulation. it reads thus: 'one seat for physically handicapped candidate and one seat for sportsmen who have represented at any one or more at the university level, state level or national level sports or games may be reserved outside the intake fixed at the discretion of the syndicate for each course.' reservation contemplated is outside the intake fixed. if sportsmen or a candidate physically handicapped is to be provided within intake quota, then necessarily there must be a reservation preceding selection. if reservation is outside the intake, syndicate, depending upon its satisfaction, may reserve or may not reserve. 5. regulations have not defined what constitutes 'physically handicapped'. hence merit of the claim has to be adjudicated on what is generally understood to be 'physically handicapped'. concept of 'physical handicap' as generally understood is a physical impairment or disability in vital organ of a human body. the orthopaedically handicapped have defects that are caused by it deformity in or interference with normal functioning of the bones, muscles or joints. this condition may be congenital or acquired due to accident or disease. a person is said to be 'physically handicapped' when he suffers from deformity akin to those disabilities. a scar on the face, a torn ear with perfect hearing, a torn nose with no breathing trouble, amputation of a toe or a finger do not fall within the purview of 'physically handicapped' and it is in this view of the matter, syndicate has concluded that infirmity referred to in certificate produced does not constitute 'physical handicap' so as to make reservation in favour of petitioner. rule making authority has given a discretion to syndicate to decide whether there should be reservation in favour of sportsman or person 'physically handicapped' outside the intake. decision taken by syndicate as to whether there should be reservation in favour of petitioner as a person claiming to be 'physically handicapped' outside the intake or not cannot be substituted by this court in exercise of its power under art. 226 of the constitution of india. 6. hence, i find no merit in this writ petition. writ petition is dismissed. 7. petition dismissed.

Judgment:
ORDER

1. Petitioner relying on sub-cl. (3) of Regulation 4 of Mangalore University Post Graduate Degree and Diploma (Selection for Admission) to M.B.A. Course has sought for issue of a writ in the mature of mandamus directing respondents to select and admit him to M.B.A. Course for the academic year 1986-87.

2. In support of the plea that he is physically handicapped he has produced Medical Certificate issued by Dr. M. K. Jayanandan. Civil Surgeon Grade-11 Government Hospital, Kasargod (AnnexureA). Syndicate of Mangalore University has not considered infirmity mentioned in Certificate as physical handicap.

The decision as extracted in Statement of Objections reads thus: -

'......Sri Suresh K. is not eligible to be considered under Physically Handicapped category as cleft palate is not a kind of handicap to be considered under that category ............'

3. Sri Naik, learned counsel for petitioner contended that University has made reservation of seats in favour of sportsmen and physically handicapped as contemplated in Regulation 40) of the Regulations and petitioner is entitled to be admitted in that reserved category. He further contended that denial of admission or selection based on degree of infirmity is impermissible and when once authority reaches conclusion that there is some sort of infirmity candidate as of right is entitled to an admission. Sri P. Viswanatha Shetty, learned counsel for University submitted that Syndicate which consists of three eminent Doctors as members, including Director of Medical Education, have opined that infirmity referred to in certificate does not tantamount to physical handicap and in view of this conclusion there is no justification to interfere in exercise of its jurisdiction under Art. 226 of the Constitution of India.

4. For proper appreciation of rival contentions, it is better to extract regulation. It reads thus:

'One seat for physically handicapped candidate and one seat for sportsmen who have represented at any one or more at the University level, State level or National level sports or games may be reserved outside the intake fixed at the discretion of the syndicate for each course.'

Reservation contemplated is outside the intake fixed. If sportsmen or a candidate physically handicapped is to be provided within intake quota, then necessarily there must be a reservation preceding selection. If reservation is outside the intake, Syndicate, depending upon its satisfaction, may reserve or may not reserve.

5. Regulations have not defined what constitutes 'physically handicapped'. Hence merit of the claim has to be adjudicated on what is generally understood to be 'physically handicapped'. Concept of 'physical handicap' as generally understood is a physical impairment or disability in vital organ of a human body. The orthopaedically handicapped have defects that are caused by it deformity in or interference with normal functioning of the bones, muscles or joints. This condition may be congenital or acquired due to accident or disease. A person is said to be 'physically handicapped' when he suffers from deformity akin to those disabilities. A scar on the face, a torn ear with perfect hearing, a torn nose with no breathing trouble, amputation of a toe or a finger do not fall within the purview of 'physically handicapped' and it is in this view of the matter, Syndicate has concluded that infirmity referred to in certificate produced does not constitute 'physical handicap' so as to make reservation in favour of petitioner.

Rule making authority has given a discretion to Syndicate to decide whether there should be reservation in favour of sportsman or person 'physically handicapped' outside the intake. Decision taken by Syndicate as to whether there should be reservation in favour of petitioner as a person claiming to be 'physically handicapped' outside the intake or not cannot be substituted by this court in exercise of its power under Art. 226 of the Constitution of India.

6. Hence, I find no merit in this writ petition. Writ Petition is dismissed.

7. Petition dismissed.