Full Judgment Text
CA 288-289/16
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.288-289 OF 2016
(Arising out of S.L.P.(C) Nos.33583-33584 OF 2012)
Chairman, Odisha Joint Entrance Appellant(s)
Examination
Versus
Jasobanta Nayak and Others Respondent(s)
O R D E R
Leave granted.
2. The present appeals are directed by way of special
leave petitions against the judgement and order dated
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17 October, 2012, passed in W.P.(C) No.14456 of 2012, by
the High Court of Orissa at Cuttack.
3. The respondent No.1 herein had appeared in the
Odisha Joint Entrance Examination 2012 for admission into
engineering course. He was assigned the rank at Sl. No.16871
in the general category and placed at No.80 under the
physically challenged category for admission into the
engineering course. As the respondent No.1 was physically
handicapped, he had filed a certificate issued from the
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District Head Quarters Hospital, Balasore, Odisha, which had
mentioned that he was visually disabled by 40%. Needless to
say, visual 40% disability enables a candidate to be
considered in the physically handicapped category.
4. It is submitted by Mr. Milind Kumar, learned counsel
appearing for the appellant that the order passed by the
High Court suffers from grave illegality inasmuch as it has
observed that the respondent No.1 was directed to produce
the physically handicapped certificate, though the
prospectus clearly prohibits for filing of such certificate.
It is urged by him that the Board that was constituted as
per the stipulations prescribed in the prospectus, had found
that the respondent No.1 had 20% visual disability and not
40% and, in such a case, the High Court should not have
placed reliance on the certificate issued by the District
Head Quarters Hospital, Balasore, by opining that there is
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no reason to disbelieve the same.
5. Ms. Nidhi, learned counsel appearing for the
respondent No.1, has supported the order passed by the High
Court.
6. To appreciate the controversy, we may with profit
refer to Clause 2.1.4. of the prospectus, which reads as
follows:
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“2.1.4. 3% of seats are reserved for
Physically Challenged candidates for admission to
B. Tech/B. Arch / MBA / MCA / PGDM / PGCM / PGDM
(Exe) / B. Pharm courses. the candidates with
40% disabilities in consonance with section – 39
of the Persons with Disabilities (Equal
opportunities, Protection of Rights and Full
participation) Act, 1995, are eligible to be
considered under Physically Challenged Category
for admission to B. Tech / B. Arch / MBA / PGDM /
PGCM / PGDM (Exe) / B. Pharm courses.
3% of total MBBS and BDS seats are reserved
for persons with disabilities and they have to
meet the medical standard of Locomotory
disability of lower limbs between 50 to 70% (% of
disability may vary subject to the decision of
the Hon'ble Apex Court).
The medical standard of PC category
candidates will be decided by a medical board
specifically constituted with Senior Professors
of the premier medical college and hospital : SCB
Medical College, Cuttack, and Chairman, OJE –
2012 or his representative under the Chairmanship
of Principal, SCB Medical College or his nominee,
that they are eligible to be categorized as
Physically Challenged candidates and capable of
undergoing each part of the requirements for B.
Tech / B. Arch / MBBS / BDS / MBA / MCA / PGDM /
PGCM (Exe) / B. Pharm. The decision of this
Board will be final and binding. They SHOULD NOT
therefore, submit along with the application form
any medical certificate to the effect that they
are physically challenged .
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Further, for MBBS/BDS stream, the
candidates claiming locomotory disability of
lower limbs are only eligible for consideration.
Visually handicapped and hearing disabled
candidates are not eligible as stipulated by
Medical Council of India.”
[Emphasis supplied]
7. On a perusal of the aforesaid clause, it is
perceivable that the candidates should not submit along with
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application form, any medical certificate to the effect that
they are physically challenged. The High Court, as we find
from the order impugned, has stated, as a matter of fact,
that the candidates were directed to produce the physically
handicapped certificate. The said finding, being contrary
to the postulates in the prospectus is absolutely
unsupportable.
8. It needs no special emphasis to state that the
percentage of disability has to be determined by the Medical
Board, which is specifically mentioned in the prospectus.
The said Board consisting of Dean & Principal, S.C.B.
Medical College, Cuttack, and two Assistant Professors,
Department of Ophthalmology, S.C.B. Medical College,
Cuttack, has assessed the disability of vision of the
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respondent No.1 on 16 June, 2012, at 20% and issued the
certificate. Be it noted, the certificate granted by the
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District Head Quarters Hospital, Balasore, was 40%. A Court
cannot assess the percentage of disability. As per the
prospectus, the Medical Board has to be constituted
consisting of senior Professors of the S.C.B. Medical
College, Cuttack and Chairman, OJEE – 2012 or his
representative under the Chairmanship of Principal, S.C.B.
Medical College or his nominee. The Medical Board has been
constituted as per the norms of prospectus and it has
clearly recorded its opinion as regards the disability of
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vision of the respondent. In such a situation, we are
constrained to hold that the High Court was not justified in
interfering with the selection process in exercise of writ
jurisdiction and declaring the disability of the respondent
No.1 at 40% and to consider his case in the category of
physically handicapped persons. The approach being
erroneous, the order is wholly untenable.
9. Resultantly, the appeals are allowed and the order
passed by the High Court is set aside. There shall be no
order as to costs.
......................J.
(Dipak Misra)
......................J.
(N.V. Ramana)
New Delhi;
January 18, 2016.
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