Dismissed

Aswathy.P v. State of Kerala

Kerala HC12 Oct 2010WA/1708/2010

Case brief

AI extract

What is this about?

The High Court dismissed this writ appeal regarding the constitution of a State Level Committee to re-verify a disabled candidate's disability percentage. Examining the Persons with Disabilities Act, 1955, and relevant Rules, the Court held that nothing prohibits the State from cross-checking certificates issued by a Medical Board.

What did the court decide?

The writ appeal was dismissed at the admission stage without any substantive interference with the impugned judgment.

Aswathy.P Vs State of Kerala — Education and Admissions | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932

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WA.No. 1708 of 2010 -----------------------AGAINST JUDGMENT IN WP(C) NO.27020/2010 DATED 6.9.2010

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APPELLANT/PETITIONER IN WPC NO.27020/2010

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ASWATHY P. (MINOR), D/O.PURUSHOTHAMAN, NJARUVELICHIRA, PERUMTHURUTHU, MUHAMMA P.O., ALAPPUZHA, REPRESENTED BY HER FATHER & NATURAL GUARDIAN PURUSHOTHAMAN, NJARUVELICHIRA, MUHAMMA P.O., ALAPPUZHA.

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BY ADV. SRI.LAL GEORGE

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RESPONDENTS/RESPONDENTS IN WPC NO.27020/2010

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM - 695 001.

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DIRECTOR OF MEDICAL EDUCATION, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., TRIVANDRUM - 695 001.

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DIRECTOR, LBS CENTRE FOR SCIENCE AND TECHNOLOGY, TRIVANDRUM - 695 001.

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PRINCIPAL, MEDICAL COLLEGE, KOZHIKODE - 673 001.

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R1, R2 & R4 BY SR.GOVERNMENT PLEADER SMT.K.MEERA R3 BY ADV. SRI.P.B.SURESH KUMAR SC, LBS CENTRE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.

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W.A. No. 1708 of 2010

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Dated this the 12^th day of October, 2010

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JUDGMENT

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J.Chelameswar, C.J.

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Aggrieved by judgment dated 6^th September, 2010 in W.P.(C) No.27020 of 2010, the unsuccessful petitioner therein

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preferred the present writ appeal.

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The first respondent published a prospectus for admission to the professional degree courses in Nursing, Pharmacy and Para Medical streams for the academic year 2010. The prospectus, inter alia, contained a provision for reservation of three percent of the available seats in the State in favour of the candidates with disabilities. Sub-clause (i) of clause 5.3 of the prospectus stipulates as follows:

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“ 5.3 Reservation for Persons with Disabilities (PD):

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(i) Three percent of the seats available to the State for allotment from the state rank lists are reserved for candidates with disabilities for all courses in Government/Government

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W.A.No.1708 of 2010

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- 2 -

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Controlled Self Financing Colleges as stipulated in Section 39, Chapter VI of the Persons with Disabilities Act, 1955. As per Clause 2(t), Chapter I of the Act, 'Person with Disability' means a person suffering from not less than 40% of any disability as certified by a 'medical authority'. Generally, candidates who have a minimum of 40% disability alone will be eligible to apply for this quota. Candidates seeking admission, will have to satisfy the eligibility criteria prescribed by the concerned regulatory bodies for 'Persons with Disabilities'. “

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It can be seen from the above extract that the stipulation in the prospectus is that only persons with more than 40% of disability in any category would be eligible to secure a seat under the abovementioned quota. It is further stipulated in the prospectus that 'persons with disabilities' carry the same meaning as is assigned to the said expression under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The said Act defines 'person with disability' under Section 2(t) as follows:

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“2. Definitions.- In this Act, unless the context otherwise requires.-

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xxxxx xxxxx

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(t) “person with disability” means a person suffering from not less than forty percent of any disability as certified by a medical authority;”

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W.A.No.1708 of 2010

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The expression 'disability' itself is defined under

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Section 2(i) as follows:

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“(i) “disability” means(i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness;”

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The appellant applied in response to the above

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prospectus claiming the benefit of the abovementioned reservation. In support of her claim she produced a certificate dated 17.4.2002 (Ext.P1) issued by the T.D.Medical College Hospital, Alappuzha, Government of Kerala. It is stated in the writ petition in this regard as follows:

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“The petitioner is a disabled person and she has lost her right thumb. The District Medical Board attached to T.D.Medical College, Alappuzha had examined and assessed her total degree of permanent disability as 45%. The district Medical Board, attached to T.D.Medical College consists of specialist doctors including Orthopedic Surgeon, Psychiatrist and ENT Surgeon. The District Medical Board was constituted by the Govt. as per G.O.(P) SWD No.13/2000 dated 19.6.2000. True photostat copy of the certificate of

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W.A.No.1708 of 2010

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disability dated 17.4.02 issued by the Medical Board attached to T.D.Medical College, Alappuzha is produced herewith and marked as xt.P1.”

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Ext.P1 certifies the fact that the right thumb of the appellant is absent. It further certifies that the disability is 45%.

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The appellant was provisionally admitted to the B.Sc. Optometry course. Thereafter the appellant was subjected to a further examination regarding the claim of disability by a State Level Committee constituted by the Government which assessed the disability of the appellant as 30% only. Consequent upon such an assessment, the appellant was informed by Ext.P7 communication dated 19.8.2010 of the 4^th respondent that the allotment under Ext.P4 stood cancelled in the light of the communication of the third respondent herein dated 14.8.2010. The relevant portion of the said communication reads as follows:

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“With reference to the above, I am to inform you that Director, L.B.S. Centre has informed that your allotment for BSc Optometry course under PWD Quota stands cancelled. On the basis of the cancellation of allotment, the admission for BSc Optometry course under PWD Quota is hereby cancelled.”

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W.A.No.1708 of 2010

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Therefore, the appellant approached this Court by

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the abovementioned writ petition. The writ petition was dismissed by the judgment under appeal.

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Heard Sri.Lal George, the learned counsel for the appellant. Reservation in favour of persons with disabilities is

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mandatory under Section 39 ***** of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act and under the scheme of the Act a 'person with disability' by definition is a person who suffers from anyone of the disabilities specified under Section 2(i) of the Act and such a disability by definition shall not be less than 40% as

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certified by a medical authority. The expression 'medical authority' itself is defined under Section 2(p) of the Act as

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*39. All educational institutions to reserve seats for persons with disabilities.- All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities.

W.A.No.1708 of 2010

follows:

“(p) medical authority” means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government;”

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It can be seen from the definition that the

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existence of disability can be certified only by such hospital or institution specified by a notification by the appropriate Government to be the medical authority for the purpose of this Act. It is not very clear from the materials on record whether Ext.P1 certificate was issued by the medical authority duly notified by the State Government or not. But, for the purpose of the present writ petition, we presume that the certificate was issued by the duly notified medical authority for the purpose of the Act.

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The learned counsel for the appellant argued that once such a certificate is produced it is not open for any authority functioning under the State Government to ignore the certificate nor is it permissible for the respondents to conduct

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any fresh enquiry either into the nature of the disability or the

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W.A.No.1708 of 2010

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degree of the disability as such a second enquiry is not contemplated either under the Act or under the Rules.

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Sub-clause (iv) and (v) of clause 5.3 of the prospectus specify as follows:

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“(iv) A State Level Committee to be constituted by the Government under the Chairmanship of the Director of Medical Education consisting of medical experts in General Medicine, ENT, Neurology, Orthopedic Surgery, Ophthalmology, Psychiatry, and Physical & Rehabilitation Medicine will examine and assess the disability of the candidates who are provisionally included under this Category. Necessary orders constituting the Committee will be issued by the Government in due course and the same will be notified. The State Level Committee will have powers to review the Certificates issued by the District Medical Boards.

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(v) There will be special invitees representing Pharmacy, MLT, Nursing, Physiotherapy and Opthomology specialities to this Committee in addition to Medical Experts who will subsequently determine the suitability of a candidate, having minimum 40% of any disability, for a particular course.”

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It is pursuant to the abovementioned clause the

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State Level Committee was constituted by the Government of

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Kerala. It appears from the materials on record, more

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W.A.No.1708 of 2010

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specifically Ext.P8, that such a committee was constituted by the Government as per G.O.(Rt) No.2804/2010/H&FWD dated 21.7.2010. The relevant portion of the communication dated 14.8.2010 issued by the third respondent in this regard reads as

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follows:

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“Vide G.O.(2) above, the Government constituted the committee and the candidates under Person with Disability (PWD) quota were directed to appear before the Committee on 4.8.2010 and the Committee examined the candidates. As per the report of the Committee, Ms.Anila B.S. has only 14% disability and Ms.Aswathy P has only 30% disability and hence cannot be considered under this quota.”

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The learned counsel for the appellant further argued that in view of the statutory rule and the creation of a Medical Board, a further verification of either the existence or the degree of disability is not permissible under the Act and therefore the prospectus insofar as it provided for a further verification by the State Level Committee is illegal and consequentially the verification conducted by such a body and the decision to deny admission to the appellant on the basis of such a verification are also illegal.

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W.A.No.1708 of 2010

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The question is whether constitution of such a

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State Level Committee is prohibited either expressly or by necessary indication by any law.

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The State of Kerala made a set of Rules called Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996. Obviously, these Rules are made by the State of Kerala in exercise of the authority conferred under Section 73 of the Act. Rule 4 of the abovementioned Rules provides for the constitution of Medical Board at every district headquarters consisting of atleast three members. Such a Medical Board is authorised to issue certificates of disability. As already noticed, the expression 'person with disability' as defined under Section 2(t) of the Act means a person suffering from not less than forty percent of any one of the categories of disability, duly certified by the Medical Board.

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We regret our inability to accept the submission

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made by the learned counsel for the appellant. As already

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W.A.No.1708 of 2010

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10 -

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indicated, we proceed on the basis that Ext.P1 certificate was issued by a validly constituted Medical Board contemplated under Rule 4 of the abovementioned Rules. Even then, we are of the opinion that there is nothing in the law which prohibits the State from constituting another body either to crosscheck the correctness of the certificate issued by the Medical Board constituted under Rule 4 of the abovementiond Rules or otherwise to independently examine the disability of a candidate seeking any one of the benefits contemplated under the Act.

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The expression 'medical authority' as defined under Section 2(p) of the Act means a hospital or institution specified for the purposes of this Act by a notification by the appropriate Government. In our opinion, the definition is capable of permitting the Government to constitute more than one medical authority depending upon the purposes of such verification. Apart from that nothing, either in the Act or in any other law, prohibits the State from taking such steps as the State deems it necessary to crosscheck the correctness of the

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W.A.No.1708 of 2010

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certificates issued by a body which is otherwise competent to

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issue such certificates under any law. Such an exercise is obviously undertaken in the larger public interest of ensuring a fair and proper administration of law and the same cannot be held to be illegal unless specifically prohibited by any law. No such prohibition has been brought to our notice in the context of the case.

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We, therefore, do not see any reason to interfere with

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the judgment under appeal. The writ appeal is dismissed at the

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admission stage.

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J.Chelameswar, Chief Justice

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P.R.Ramachandra Menon,

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Judge

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vns

Aswathy.P v. State of Kerala

Case brief

What is this about?

What did the court decide?

Aswathy.P v. State of Kerala

Case brief

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