Quota for admission in MBBS/BDS Course of disabled persons should be 3%.

THE HONOURABLE CHIEF JUSTICE:

This Writ Appeal raises an important question of law for consideration regarding the enforceability of 3% reservation for the persons suffering with disabilities as provided in the 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as the Disabilities Act.

2. Few facts, leading to the filing of the Writ Petition No.36781 of 2002, may be necessary to be stated. The respondent is a minor represented by his father and is 50% physically disabled because of polio attack during his childhood. He appeared in Entrance Examination conducted for Medical/BDS course for the academic year 2002 - 2003 and secured 285.37 out of 300 marks but he could not get admission in Open Category and among physically disabled, he was placed at fifth rank. He could not get a seat in M.B.B.S. course as only three seats were earmarked for disabled. However, he was offered a seat in B.D.S. in payment category. Aggrieved by the said action, he had filed the writ petition.

3. The learned single Judge, by his order dated 30.12.2002, upheld the plea that the respondent/writ petitioner was entitled for a seat construing Section 39 of the Disabilities Act as mandatory, disapproved earmarking of only three seats out of the sanctioned seats of 1,255 and held that 39 seats, conforming to 3% reservation for the disabled, ought to be provided and consequently issued directions to the appellants herein to admit the writ petitioner in the M.B.B.S. course for the academic year 2002 - 2003. The argument of the appellants before the learned single Judge that the provision contained in Section 39 of the Disabilities Act is not applicable and in any event, it is only directory and not mandatory, was negatived. Hence, this Appeal.

4. Mr. V.R. Rajasekaran, learned Special Government Pleader (Education), appearing for the appellants, strenuously contended that the State had already enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and Appointments or Posts in the Services under State) Act, 1993, hereinafter referred to as T.N. Act 45 of 1994, and as such, there is no scope for implementing the Disabilities Act enacted by the Central Government and that in any event, the provision contained in Section 39 of the Disabilities Act is only directory and not mandatory, that it is not possible to give 3% reservation for disabled, that the three seats reserved for M.B.B.S. course are sufficient for them, that even those seats have been filled up for the academic year 2002 - 2003, that classes have begun long before the order of the learned single Judge and that the order of the learned single Judge is fit to be set aside.

5. Mr. Omprakash, learned counsel appearing for the respondent/petitioner, has countered the said arguments submitting that Section 39 of the Disabilities Act is mandatory in nature, that the respondent/writ petitioner, who had secured good marks, was entitled as of right to be admitted under the quota for disabled, that the quota for disabled should be only 3% and not three seats, that T.N. Act 45 of 1994 cannot nullify the beneficial provision provided under the Disabilities Act and that the order of the learned single Judge has got to be affirmed.

6. Of the contentions and the rival contentions made, the following points emerge for consideration;

(i) whether the Disabilities Act enacted by the Central Government is not effective in Tamil Nadu in view of T.N. Act 45 of 1994;

(ii) whether Section 39 of the Disabilities Act is mandatory or directory; and

(iii) whether the writ petition is hit by laches and the writ petitioner is not entitled for the relief in view of the filling up of seats for the academic year 2002 - 2003.

7. The Supreme Court in INDIRA SAWHNEY v. UNION OF INDIA (AIR 1993 SC 477) held that reservations contemplated in Clause 4 of Article 14 of the Constitutio