Oral Order: (S.B. Mhase, J.)

1. Heard learned counsel for the parties.

2. Rule. Returnable forthwith with consent of parties.

3. The petitioner has approached to this Court under Article 226 of the Constitution of India challenging the reservation of a subject of Oral Pathology and Microbiology for physically handicapped candidates.

4. The petitioner is a graduate and he has obtained a degree in BDS. He desires to take an admission to Post Graduate Degree course, namely MDS. It is not disputed before this Court that he is a physically handicapped person and he is trying to seek an admission as handicapped person. As per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, there has to be reservation of 3% seats in favour of the physically handicapped category. So far as the reservation to be provided to the handicapped persons, the State is not disputing the percentage of seats to be provided for the post graduate admission, namely, 3% admissions are required to be reserved for the handicapped persons. It is also not disputed before this Court that one seat by way of 3% reservation in favour of the handicapped persons, goes to the physically handicapped category out of the total post graduate seats in the State of Maharashtra. It is also not disputed that there are in all eight subjects for which the courses are being conducted in the State of Maharashtra for Post Graduate. Those subjects are as follows:-

1. Prosthodontics;

2. Oral & Maxillofacial Surgery,

3. Orthodontics,

4. Periodontics,

5. Pedodontics,

6. Endodontics,

7. Oral Medicine & Radiology,

8. Oral Pathology.

Out of these eight subjects, it appears that the subject of Oral Pathology and Microbiology is a non-clinical subject, while rest of the seven subjects are clinical subjects. In the year 2006 one seat by way of reservation in favour of the physically handicapped category was given to the subject of Oral Pathology. In the year 2007 the said seat was given to the Conservative Dentistry, which means Endodontics. In the year 2008 the said reservation was given in the subject of Oral Medicine and Radiology, while in the academic year of 2009 it has been again provided to the Oral Pathology. Therefore, the challenge is developed by the learned counsel for the petitioner that if there are eight subjects, as stated above, those eight subjects by rotation shall be made available to the physically handicapped persons by reservation. It is submitted that the subject of Oral Pathology, which is a non-clinical subject, cannot be repeated in the reservation, as done by the respondents. But the submission is that the said non-clinical subject should appear in the reservation after a period of every seven years so that there will be an opportunity in favour of the handicapped candidates to get a degree in each subject whenever it is available in the reservation system, but in each subject not there should be a reservation in favour of the handicapped persons but the subject shall be made available to the handicapped persons by rotating the subjects.

5. The learned counsel appearing for the respondents-State, though feebly attempted to point out that there is a rotation carried out by them without disputing that the subjects are required to be rotated, we find that proper rotation system has not been followed. The learned Counsel for the respondents tried to distinguish between the clinical and non clinical subjects. However, neither of the parties before us could satisfy the classification of subjects as to clinical and non clinical subjects. An attempt was made by the learned counsel for the State by pointing out a Chart of minimum working hours for each subject for the BDS course and that there is a practical and clinical hours provided for some subjects. However, on a perusal of the said chart, we have also noticed that out of the eight subjects we can only accept that Oral Pathology and Microbiology is of th