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Tamil Nadu
By A. Subramani
As in the case of gender reservation — and unlike the quota on the basis of backwardness of classes — the three per cent reservation for the disabled should be horizontal and not vertical. As for Tamil Nadu medical education, the percentage works out to 37 MBBS seats (out of 1,255), and these have to spread horizontally into the open, BC, MBC, SC and ST categories. The First Bench, comprising the Chief Justice B. Subhashan Reddy and Justice D. Murugesan, was passing orders on an appeal against a single judge order passed in favour of J. Rajkumar of Elagiri. A 50 per cent disabled student, who had obtained 285.37 out of 300 marks in the medical entrance examination last year, Rajkumar could still not get an MBBS seat because the State had reserved only three seats under the disabled category. In his writ petition, he pointed out that as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, the Government, which ought to have reserved 37 seats, provided only three seats. But the Government argued that the provisions were "only directory and not mandatory" in nature. Negativing the government stance on December 30, 2002, Justice E. Padmanabhan directed the State to grant a medical seat to Rajkumar and asked it to reserve three per cent seats in all educational institutions for disabled candidates. Hence the present appeal. The Government told the First Bench that it had already enacted the TN Backward Classes, Scheduled Castes and Scheduled Tribes (reservation or seats in educational institutions and appointments or posts in the services under the State) Act 1993. "Hence there is no scope for implementing the Disabilities Act enacted by the Centre, and that it is not possible to give three per cent reservation for the disabled". Stating the three seats earmarked for the academic year 2002-03 had already been filled up and that classes had commenced even before the single judge's order was delivered, the Government pleaded that it was too late for admitting Rajkumar to a medical college. Section 39 of the Disabilities Act says: "Government educational institutions and other institutions receiving aid from the Government shall reserve not less than three per cent seats for persons with disabilities". The Bench said, "a bare reading of the Section itself would not leave any doubt that it is mandatory and not directory". Pointing out that there was no conflict between the TN Act and the Disabilities Act, the Bench said, "even if such conflicts occur, the Disabilities Act, being a later one and traceable to Entry 25 List III of Schedule 7 of the Constitution, would prevail over any repugnant provision". The judges also said a copy of the verdict should be sent to the Chief Secretary with a direction `to issue necessary instructions to the authorities concerned to follow the rule of reservation of three per cent to the disabled in all government as well as aided institutions in the State'. The Bench asked the Government to admit Jayakumar in the 2002-03 batch, as the writ petition was filed in September 2002 itself and the single judge passed a favourable order in December. Moreover, the operation of the order was never stayed.
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