Surinder Kumar Vs. Panjabi University and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - as the petitioner qualified the combined entrance test with good percentage of marks, so he became eligible for admission to b. under the directive principles of state policy, every government within article 38 of the constitution of india is duty bound to secure and protect effectively a social order in the state in which justice -social, economic and political -is provided to the people in the national life. the petitioner completed his graduation in the 1st division from the punjab university and secured second division with 57 per cent marks in the matriculation as well. it shows that he is a very meritorious candidate who can do better than those who are not blind and also could improve upon his career for his future vocational pursuits.orderm.l. koul, j.1. the petitioner, who is blind by birth and virtually handicapped, has filed this petition under arts. 226 and 227 of the constitution of india for issuing a writ in the nature of mandamus directing the respondents to admit him to b.ed. course against one of the reserved seats kept earmarked for phisically handicapped persons by the authorities. the petitioner, who is 100 per cent blind, passed his b.a. examination in 1st division from the punjab university in the year 1990 and appeared in the combined entrance test held by the guru nanak dev university, amritsar, on 3-7-1994 for selection of students for admission to b.ed. course in the state of punjab. he obtained 122 out of 250 marks, i.e., 49 per cent marks, as is clear from the result card (annexure p 3) provided to him. as the petitioner qualified the combined entrance test with good percentage of marks, so he became eligible for admission to b.ed. course in any college of education in the state of punjab. he submitted his admission form in both the colleges of education at patiala and faridkot. there were 180 sets available in the government college of education, paliala, and 100 seats in the government college of education, faridkot. according to the prospectuses of both the colleges, 2 per cent of seats were reserved in each college for the handicapped persons. so, as per the ratio, six seats were available in both the colleges for the handicapped persons. the petitioner, appeared for interview before the inverview committee at patiala on 12-8-1994 and at faridkot on 16-8-1994. although the petitioner was eligible for admission in b.ed. class yet he has not been given admisison by the principals of the said colleges. on his enquiry, the petitioner was told that, as he is a blind person, therefore, there was no seat available for him although blind persons were earlier provided admission in some of the colleges. the principals of both the colleges refused to provide, him admission without any rhyme and reason when they knew that 2 per cent of seats had been reserved for the handicapped persons including blind people as per the rules of theuniversity. the petitioner, on the one hand, was refused admission on the ground that he is a blind person but, on the other hand, one bhupinder singh, a blind student belonging to rajpura, was given admission in government college of education, patiala, although he possessed lesser merit than that of the petitioner, the petitioner belongs to border area of the state of punjab and the place, where he is living, falls within ten miles' belt of the indo-pak international border, which has been declared as a border area by the punjab government and, in that regard, the certificate issued by the deputy commissioner, ferozpur, is contained in annexure p4.2. objections have been filed by the respondent-state and the preliminary objection raised by them was that the petitioner could not produce a certificate from the chief medical officer to show that he can teach students, as being one of the conditions land down in the prospectuses of both the colleges. according to the respondents, the petitioner fulfils the eligibility conditions but other aspects are also to be taken into consideration, which they have vaguely raised and have no relevancy to the controversy raised by the petitioner. they have not denied that 2 per cent of seats were kept reserved for the physically handicapped persons and that the petitioner falls in that category.3. we have heard the learned counsel for the parties and also had a thoughtful consideration over the record on the file.4. it is an admitted case of the parties that the petitioner appeared in the combined entrance test conducted by the guru nanak dev university, amritsar, for selection of candidates for admission to b.ed. course in different colleges in the state of punjab. the petitioner, being fully eligible for admission, submitted his form of appearing in the combined entrance test. on completion of that test, he obtained 122 out of 250 marks and thus became eligible for admission to b.ed. course. in this regard, he also submitted his admission forms in both the colleges of eduaction at patiala and faridkot. in both the colleges, 2 per cent of seats were kept reserved for the handicapped persons and thepetitioner, being the sole eligible candidate, was refused admission by the principals of the colleges on the ground that he had not obtained a medical certificate from the chief medical officer showing that he was able to teach students.5. the petitioner was seeking admission to the b.ed. course and was not seeking any appointment from the principals of the colleges who, as per eligibility of the petitioner were legally bound to provide him a seat for b.ed. course on the basis of reserved categories when 2 percent of seats were fixed for the physically handicapped persons. the college of education, patiala, had to admit 180 people and the college of education, faridkot, had to admit 100 people for b.ed. course and thus, in nutshell, six people were entitled to admission on eligibility basis, who belonged to the category of handicapped people. the petitioner was thus entitled to admission on the basis of eligibility, for he had been declared eligibile as per the test held by the authorities and only admission was to be provided to him for attending the b.ed. classes. he was never seeking any service in the colleges and, by no stretch of imagination, the principals of the colleges were competent to refuse admission to him once he had been declared successful in the combined entrance test held by guru nanak dev university and had fallen in the category of eligible candidates out of the physically handicapped persons, if any other than him. no ground has been made out by the respondents that no seats were available for the handicapped persons under the category of physically handicapped persons and that the petitioner was lacking behind in merit out of such candidates, if any available, in the state for such admission.6. loosely, it has been contended by the learned counsel for the respondents that only those handicapped candidates could be admitted to the colleges for b.ed. course who were handicapped by 40 per cent and, to that effect, a certificate was to be granted by the civil surgeon that they were able to teach. if such a rule is contained in the prospectus of any of the colleges, that is illegal andcontravenes the very law or the rules on the subject on the basis of which 2 per cent of the seats have been reserved for the candidates who fall within the category of physically handicapped.7. under the directive principles of the constitution, the phyically handicapped people are to be uplifted by the state socially in an appropriate manner and thereupon their educational pursuits are to be advanced in proper manner on the basis of their merit and eligibility. under the directive principles of state policy, every government within article 38 of the constitution of india is duty bound to secure and protect effectively a social order in the state in which justice --social, economic and political -- is provided to the people in the national life. although these provisions are not enforceable by any court yet the principles laid down therein are, nevertheless, fundamental in the governance of the country. having regard to this principle, of law contained in the constitution of india, the petitioner who, though being a handicapped person, successfully completed the combined entrance test for seeking admission to the b.ed. course, is entitled to admission, especially for the reasons that he has a meritarious record in his b.a. and matriculation showing that he is the first class student.8. the petitioner, in no manner, could be refused admission by the authorities on the ground that he could not teach students in the class. the principal of the two colleges could not disallow him admission on the ground that he is not able to teach students in the class. the petitioner completed his graduation in the 1st division from the punjab university and secured second division with 57 per cent marks in the matriculation as well. it shows that he is a very meritorious candidate who can do better than those who are not blind and also could improve upon his career for his future vocational pursuits.9. the learned counsel for the petitioner has referred to national federation of blind v. union public service commission, (1993) 2 jt (sc) 54 : (air 1993 sc 1916) and the apex court of this country has permitted the blind people to appear in the i.a.s. examination and even the eligible candidates fromthe blind people have been allowed to compete and sit in the civil service examination in braille script or with the help of a scribe. once this principle has been laid down by the apex court of the country that the blind people can appear even in the highest administrative service examination of the country, there is no bar for the blind people to seek admission in other educational pursuits just as b.ed. and other courses where they can recapitulate everything by mind and can reproduce it on the basis of their mental vocabulary and grasp on the subject.10. the visually -handicapped people constitute a significant section of our society and the state is bound to encourage their participation in every walk of life. there are many visually handicapped people who possess sufficient potentialities on various subjects and it is the duly of the authorities in power to utilize their potentialities. in this regard, the central and the state governments have launched several schemes to educate, train and provide useful employment to the handicapped. once state of punjab has reserved 2 per cent of seats for admission to b.ed. course for the handicapped persons and that too for those who are successful and hold merit after qualifying the entrance test, there is no bar otherwise for them to seek admission to the course for which they have been permitted to appear in a test. the petitioner is a successful candidate in the entrance test and there is no proof available on the file that anybody out of the physically handicapped people supersedes him in merit. therefore, he under law is entitled to be provided admission to the b.ed. course.11. in view of the above discussion, this petition is allowed and respondent no. 1 is directed to see that the petitioner is admitted in one of the aforesaid two colleges for b.ed. course at right earnest. respondent no. 1 is further directed that, if classes for the said course have already set in, special classes be held for the petitioner so that he is not disabled for appearing in the final b.ed. examination along with other rival studentswho have already prosecuted their studies for the said course.12. petition allowed.

Judgment:
ORDER

M.L. Koul, J.

1. The petitioner, who is blind by birth and virtually handicapped, has filed this petition under Arts. 226 and 227 of the Constitution of India for issuing a writ in the nature of mandamus directing the respondents to admit him to B.Ed. Course against one of the reserved seats kept earmarked for phisically handicapped persons by the authorities. The petitioner, who is 100 per cent blind, passed his B.A. examination in 1st Division from the Punjab University in the year 1990 and appeared in the Combined Entrance Test held by the Guru Nanak Dev University, Amritsar, on 3-7-1994 for selection of students for admission to B.Ed. Course in the State of Punjab. He obtained 122 out of 250 marks, i.e., 49 per cent marks, as is clear from the result card (Annexure P 3) provided to him. As the petitioner qualified the Combined Entrance Test with good percentage of marks, so he became eligible for admission to B.Ed. Course in any College of Education in the State of Punjab. He submitted his admission form in both the Colleges of Education at Patiala and Faridkot. There were 180 sets available in the Government College of Education, Paliala, and 100 seats in the Government College of Education, Faridkot. According to the prospectuses of both the Colleges, 2 per cent of seats were reserved in each college for the handicapped persons. So, as per the ratio, six seats were available in both the Colleges for the handicapped persons. The petitioner, appeared for interview before the Inverview Committee at Patiala on 12-8-1994 and at Faridkot on 16-8-1994. Although the petitioner was eligible for admission in B.Ed. Class yet he has not been given admisison by the Principals of the said Colleges. On his enquiry, the petitioner was told that, as he is a blind person, therefore, there was no seat available for him although blind persons were earlier provided admission in some of the Colleges. The Principals of both the Colleges refused to provide, him admission without any rhyme and reason when they knew that 2 per cent of seats had been reserved for the handicapped persons including blind people as per the Rules of theUniversity. The petitioner, on the one hand, was refused admission on the ground that he is a blind person but, on the other hand, one Bhupinder Singh, a blind student belonging to Rajpura, was given admission in Government College of Education, Patiala, although he possessed lesser merit than that of the petitioner, The petitioner belongs to border area of the State of Punjab and the place, where he is living, falls within ten miles' belt of the Indo-Pak International Border, which has been declared as a border area by the Punjab Government and, in that regard, the certificate issued by the Deputy Commissioner, Ferozpur, is contained in Annexure P4.

2. Objections have been filed by the respondent-State and the preliminary objection raised by them was that the petitioner could not produce a certificate from the Chief Medical Officer to show that he can teach students, as being one of the conditions land down in the prospectuses of both the Colleges. According to the respondents, the petitioner fulfils the eligibility conditions but other aspects are also to be taken into consideration, which they have vaguely raised and have no relevancy to the controversy raised by the petitioner. They have not denied that 2 per cent of seats were kept reserved for the physically handicapped persons and that the petitioner falls in that category.

3. We have heard the learned counsel for the parties and also had a thoughtful consideration over the record on the file.

4. It is an admitted case of the parties that the petitioner appeared in the Combined Entrance Test conducted by the Guru Nanak Dev University, Amritsar, for selection of candidates for admission to B.Ed. Course in different Colleges in the State of Punjab. The Petitioner, being fully eligible for admission, submitted his form of appearing in the Combined Entrance Test. On completion of that test, he obtained 122 out of 250 marks and thus became eligible for admission to B.Ed. Course. In this regard, he also submitted his admission forms in both the Colleges of Eduaction at Patiala and Faridkot. In both the Colleges, 2 per cent of seats were kept reserved for the handicapped persons and thepetitioner, being the sole eligible candidate, was refused admission by the Principals of the Colleges on the ground that he had not obtained a medical certificate from the Chief Medical Officer showing that he was able to teach students.

5. The petitioner was seeking admission to the B.Ed. Course and was not seeking any appointment from the Principals of the Colleges who, as per eligibility of the petitioner were legally bound to provide him a seat for B.Ed. Course on the basis of reserved categories when 2 percent of seats were fixed for the physically handicapped persons. The College of Education, Patiala, had to admit 180 people and the College of Education, Faridkot, had to admit 100 people for B.Ed. Course and thus, in nutshell, six people were entitled to admission on eligibility basis, who belonged to the category of handicapped people. The petitioner was thus entitled to admission on the basis of eligibility, for he had been declared eligibile as per the test held by the authorities and only admission was to be provided to him for attending the B.Ed. Classes. He was never seeking any service in the Colleges and, by no stretch of imagination, the Principals of the Colleges were competent to refuse admission to him once he had been declared successful in the Combined Entrance Test held by Guru Nanak Dev University and had fallen in the category of eligible candidates out of the physically handicapped persons, if any other than him. No ground has been made out by the respondents that no seats were available for the handicapped persons under the category of physically handicapped persons and that the petitioner was lacking behind in merit out of such candidates, if any available, in the State for such admission.

6. Loosely, it has been contended by the learned counsel for the respondents that only those handicapped candidates could be admitted to the Colleges for B.Ed. Course who were handicapped by 40 per cent and, to that effect, a certificate was to be granted by the Civil Surgeon that they were able to teach. If such a rule is contained in the prospectus of any of the Colleges, that is illegal andcontravenes the very law or the rules on the subject on the basis of which 2 per cent of the seats have been reserved for the candidates who fall within the category of physically handicapped.

7. Under the Directive Principles of the Constitution, the phyically handicapped people are to be uplifted by the State socially in an appropriate manner and thereupon their educational pursuits are to be advanced in proper manner on the basis of their merit and eligibility. Under the Directive Principles of State Policy, every Government within Article 38 of the Constitution of India is duty bound to secure and protect effectively a social order in the State in which justice --social, economic and political -- is provided to the people in the national life. Although these provisions are not enforceable by any Court yet the principles laid down therein are, nevertheless, fundamental in the governance of the country. Having regard to this principle, of law contained in the Constitution of India, the petitioner who, though being a handicapped person, successfully completed the Combined Entrance Test for seeking admission to the B.Ed. Course, is entitled to admission, especially for the reasons that he has a meritarious record in his B.A. and Matriculation showing that he is the first class student.

8. The petitioner, in no manner, could be refused admission by the authorities on the ground that he could not teach students in the class. The Principal of the two Colleges could not disallow him admission on the ground that he is not able to teach students in the class. The petitioner completed his graduation in the 1st Division from the Punjab University and secured Second Division with 57 per cent marks in the Matriculation as well. It shows that he is a very meritorious candidate who can do better than those who are not blind and also could improve upon his career for his future vocational pursuits.

9. The learned counsel for the petitioner has referred to National Federation of Blind v. Union Public Service Commission, (1993) 2 JT (SC) 54 : (AIR 1993 SC 1916) and the Apex Court of this country has permitted the blind people to appear in the I.A.S. Examination and even the eligible candidates fromthe blind people have been allowed to compete and sit in the Civil Service Examination in Braille script or with the help of a Scribe. Once this principle has been laid down by the Apex Court of the country that the blind people can appear even in the highest Administrative Service Examination of the country, there is no bar for the blind people to seek admission in other educational pursuits just as B.Ed. and other courses where they can recapitulate everything by mind and can reproduce it on the basis of their mental vocabulary and grasp on the subject.

10. The visually -handicapped people constitute a significant section of our society and the State is bound to encourage their participation in every walk of life. There are many visually handicapped people who possess sufficient potentialities on various subjects and it is the duly of the authorities in power to utilize their potentialities. In this regard, the Central and the State Governments have launched several schemes to educate, train and provide useful employment to the handicapped. Once State of Punjab has reserved 2 per cent of seats for admission to B.Ed. Course for the handicapped persons and that too for those who are successful and hold merit after qualifying the Entrance Test, there is no bar otherwise for them to seek admission to the course for which they have been permitted to appear in a test. The petitioner is a successful candidate in the Entrance Test and there is no proof available on the file that anybody out of the physically handicapped people supersedes him in merit. Therefore, he under law is entitled to be provided admission to the B.Ed. Course.

11. In view of the above discussion, this petition is allowed and respondent No. 1 is directed to see that the petitioner is admitted in one of the aforesaid two Colleges for B.Ed. Course at right earnest. Respondent No. 1 is further directed that, if classes for the said course have already set in, special classes be held for the petitioner so that he is not disabled for appearing in the final B.Ed. Examination along with other rival studentswho have already prosecuted their studies for the said course.

12. Petition allowed.