Govt Can decide mode and manner of implementing 5% reservation for Disabled Candidates: Calcutta HC

Kolkata: The Calcutta High Court has clarified that as per Section 32 of the Rights of Persons with Disabilities Act, 2016 the Government has the authority to take a decision regarding the mode and manner of implementing the minimum 5% reservation that is granted to persons with benchmark disability.

Referring to the principle of "Reasonable Accommodation" for the development of disabled as laid down by the Supreme Court in the case of Vikash Kumar vs. Union Public Service Commission & Ors., the High Court bench comprising Justice Aniruddha Roy observed:

"...from a plain and literal reading of Section 32 of the Act the Government Educational Institutions as mentioned thereunder are mandated to reserve not less than 5% seats for persons with Bench Mark Disabilities. There was no further provision made in Section 32 of the Act specifying the mode and manner in which such reservation should be made. In absence of directing the mode and manner for reservation, this Court is of the view that, sufficient discretion is left with such Government institutions to provide for the reservations in the manner and mode they would decide, but of course, in a just, fair, reasonable and rational manner and not in an arbitrary or in colorful exercise of its discretion, subject to not less than 5% seats for persons with Bench Mark Disabilities."

Such observation came from the bench while it was considering a cluster of interrelated pleas concerning the reservation of seats for the persons with physical disabilities in respect of the National Eligibility Cum Entrance Test- Post Graduation, 2022.

The concerned petitioner suffers from Deltoid Paralysis at his left arm and therefore he has an upper arm disability. Despite having 50% locomotor disability, the petitioner doctor learnt that no reservation for disabled candidates was available for admission to Dermatology course whereas same provisions were made for General Surgery, Gynecology and Obstetrics and other streams.

Claiming that the application of reservation had been done in an arbitrary manner, the petitioner further claimed that not providing reservation for admission to Dermatology course violated the provisions laid down under the Rights of Persons with Disabilities Act, 2016.

The counsel for the petitioner relied upon various provisions from the said Act. Relying upon Sections 2(c), 2(h), 3 and 32 of the said Act and submitted that the legislature had promulgated the said Act which came into force in 2006 and conferred a specific right of reservations of seats for the candidates suffering from diverse disabilities at the entry level for the Post Graduation Courses.

It was further submitted that all Government institutions of Higher Education and other Higher Education Institutions receiving aid from the Government are bound to reserve 5% seats for the candidates with bench mark disabilities. The petitioner's cousnel further contended that the provision was enacted by the legislature keeping in mind the constitutional rights guaranteed to a citizen of the country.

Besides, the counsel for the petitioner submitted that by making provisions for reservation for some streams and by not making the same reservation for the other streams, the State Authorities acted in discrimination of its discretion.

On the other hand, the State Counsel submitted that experts were engaged by the State for framing the policy and those experts had undertaken pooled allocation for adopting fairness in the reservation policy.

Further questioning the locus standi of the petitioner, the counsel for the State pointed out that the petitioner had already taken admission  in the first round of counselling in MD General Medicine in the Central Quota and did not surrender the said seat. Therefore, the petitioner was barred and disqualified to seek any further participation in the State Quota counseling after the second round.

After taking note of the submissions by both the parties, the HC bench considered the fact that experts were vested with power and authority to administer the provisions laid down under the statute and noted, "They should be considered as the master of the rules and policies framed by them, unless such rules and policies are, ex facie, arbitrary, unfair, illegal, unreasonable, or attached with malice, such rules and policies are not open for interference in judicial review by Court in exercising its jurisdiction under Article 226 of the Constitution of India."

Holding that the State Government was the master of its roster the HC bench dismissed the plea and noted, "The State Government being master of its roster unless, an ex facie, arbitrary and illegal exercise of discretion is found, such a roster cannot be interfered with. On a close scrutiny on the materials disclosed on behalf of the respondent no. 4 and 5, it appears to this Court that, following such roster the necessary reservation was made in terms of Section 32 of the Act in diverse streams in the Post Graduation Courses. Just because some of such Post Graduation Streams including the choice of the petitioner, namely, Dermatology was not provided with such reservation but as a whole the provisions of the statute having found to be complied with, it cannot be said that the Government Higher Education Institutions as mentioned under Section 32 of the Act had acted in an arbitrary and illegal exercise of its discretion and in violation of the statute."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/calcutta-hc-192803.pdf

Also Read: No SC relief to Candidate seeking admission to MD Dermatology course in PwD quota