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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 17th 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 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.

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 respondent No.1 on 16th June, 2012, at 20% and issued the certificate.  Be it noted, the certificate granted by the 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.