The main legal point established is that Section 39 of The Persons with Disabilities Act, 1995 mandates the reservation of not less than 3% seats for persons with disabilities in government and aided educational institutions, and failure to comply with this provision is justiciable through a writ of mandamus.

The writ petitioner, a minor and a physically handicapped, represented by his father has come before this court praying for the issue of a writ of mandamus directing the third respondent to implement 3% reservation for persons with disabilities as provided under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and allot MBBS seat to the Petitioner herein for the year 2002-2003.

2. All the respondents have entered appearance through the Special Government Pleader (Education). With the consent of counsel appearing on either side, the writ petition itself is taken up for final disposal.

3. The petitioner, a physically handicapped, who applied for the first year MBBS/BDS course selection was placed as No.5 in the list of candidates selected under the Category of Physically Handicapped Students, was asked to appear for counselling on 19.9.2002 for BDS Payment Seat. On verification, the petitioner came to know that he was not allotted MBBS Seat and if at all he may apply for BDS, but on payment category. The petitioner was placed No.5 in the list of handicapped persons selected. But, only three students have been admitted to the MBBS course. 3% reservation has not been made in all educational institutions including Medical/Dental and if the said principle is applied 39 seats have to be reserved for handicapped persons in the whole of the State. 3% reservation has been made mandatory by the Provisions of the Central Legislation namely, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.The said Act provides that all Government Educational Institutions and other Educational Institutions receiving aid from the Government shall reserve not less than 3% seats for persons with disabilities. The said enactment is passed on the World Human Rights Proclamation, to which India is a signatory. The provision is mandatory and till date, the respondent-State Government has not provided 3% reservation in the admission to Educational Courses in the State. Hence the present writ petition.

4. The petitioner relies upon Section 39 of the said Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. According to the petitioner, the respondents have failed to give effect to the said mandatory provision. Ignoring the said mandatory provision only three seats have been reserved which is far less than the reservation provided for in the Central Legislation. The petitioner having secured 285.37 out of 300 marks has been denied and deprived of admission. Hence the present writ petition seeking for a direction to reserve 3% of the seats in all Government Medical colleges established and run by the State and Government aided Medical Colleges and admit him.

5. Per contra, on behalf of the respondents, the third respondent has filed a counter affidavit. According to the third respondent the State Government has approved the admission procedure provided for reservation of certain number of MBBS/BDS seats for various special categories for the year 2002-2003 and physically handicapped are one among the categories of the persons for whom three seats are reserved for admission to MBBS course under the Special Category. The petitioner was not selected for admission as he was not within the zone of consideration since he has secured 285.37 marks, while others admitted, have scored more marks. It is contended that the reservation of 3% seats as provided in the Central Act 1/96 could not be given effect to in all courses as the Government has to necessarily keep in view the type of course and the suitability of the physically handicapped persons to undergo such courses, such as Medicine.

6. If the extent of disability is more that would put the physically handicapped persons in a disadvantageous position and they would also face practical difficulties in undergoing the medical courses and even continuing