:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3490 OF 2009 WRIT PETITION NO.3490 OF 2009 WRIT PETITION NO.3490 OF 2009 Pratik Bhupendra Vora, .. Petitioner Vs. State of Maharashtra & Anr. .. Respondents Mr V.M.Thorat, for the petitioner. Mr Vinay Masurkar, Govt.Pleader, respondents. CORAM : S.B.MHASE & CORAM : S.B.MHASE & CORAM : S.B.MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE : 02.04.2009. DATE : 02.04.2009. DATE : 02.04.2009. ORAL ORDER : (Per S.B.Mhase,J.) ORAL ORDER : (Per S.B.Mhase,J.) ORAL ORDER : (Per S.B.Mhase,J.) 1. Heard learned counsel for the parties. 2. Rule. Returnable forthwith with consent of parties. 3. The petitioner has approached to this Court under Article 226 of the Constitution of India challenging the reservation of a subject of Oral Pathology and Microbiology for physically handicapped candidates. 4. The petitioner is a graduate and he has obtained a degree in BDS. He desires to take an admission to Post Graduate Degree course, namely MDS. It is not disputed before this Court that he is a physically handicapped person and he is trying to :2: :2: :2: seek an admission as handicapped person. As per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, there has to be reservation of 3% seats in favour of the physically handicapped category. So far as the reservation to be provided to the handicapped persons, the State is not disputing the percentage of seats to be provided for the post graduate admission, namely, 3% admissions are required to be reserved for the handicapped persons. It is also not disputed before this Court that one seat by way of 3% reservation in favour of the handicapped persons, goes to the physically handicapped category out of the total post graduate seats in the State of Maharashtra. It is also not disputed that there are in all eight subjects for which the courses are being conducted in the State of Maharashtra for Post Graduate. Those subjects are as follows:- 1. Prosthodontics; 2. Oral & Maxillofacial Surgery, 3. Orthodontics, 4. Periodontics, 5. Pedodontics, 6. Endodontics, 7. Oral Medicine & Radiology, 8. Oral Pathology. :3: :3: :3: Out of these eight subjects, it appears that the subject of Oral Pathology and Microbiology is a non-clinical subject, while rest of the seven subjects are clinical subjects. In the year 2006 one seat by way of reservation in favour of the physically handicapped category was given to the subject of Oral Pathology. In the year 2007 the said seat was given to the Conservative Dentistry, which means Endodontics. In the year 2008 the said reservation was given in the subject of Oral Medicine and Radiology, while in the academic year of 2009 it has been again provided to the Oral Pathology. Therefore, the challenge is developed by the learned counsel for the petitioner that if there are eight subjects, as stated above, those eight subjects by rotation shall be made available to the physically handicapped persons by reservation. It is submitted that the subject of Oral Pathology, which is a non-clinical subject, cannot be repeated in the reservation, as done by the respondents. But the submission is that the said non-clinical subject should appear in the reservation after a period of every seven years so that there will be an opportunity in favour of the handicapped candidates to get a degree in each subject whenever it is available in the reservation system, but in each :4: :4: :4: subject not there should be a reservation in favour of the handicapped persons but the subject shall be made available to the handicapped persons by rotating the subjects. 5. The learned counsel appearing for the respondents-State, though feebly attempted to point out that there is a rotation carried out by them without disputing that the subjects are required to be rotated, we find that proper rotation system has not been followed. The learned Counsel for the respondents tried to distinguish between the clinical and non clinical subjects. However, neither of the parties before us could satisfy the classification of subjects as to clinical and non clinical subjects. An attempt was made by the learned counsel for the State by pointing out a Chart of minimum working hours for each subject for the BDS course and that there is a practical and clinical hours provided for some subjects. However, on a perusal of the said chart, we have also noticed that out of the eight subjects we can only accept that Oral Pathology and Microbiology is of the non clinical character and rest of the seven subjects are of the clinical character. Even assuming that the stand of the Government that subjects are divided into clinical :5: :5: :5: and non clinical classifications, on a perusal of the said Chart, we have noticed that there is only one subject, which can be said to be non clinical character and, therefore, if there are seven subjects, which are of the clinical character and one subject of the non clinical character and if seats are required to be rotated, then in that circumstances, turn of the non clinical subject, by rotation, will come only after every seven years and not before that and, thus, looking at the matter, if non clinical subject was given to the handicapped person in 2006, it cannot be repeated in 2009. Repetition of such a subject in between, that is earlier to the period of seven years, results into not offering the other subjects to the handicapped person and, therefore, rotation on the basis of the clinical and non clinical subjects cannot be permitted in such manner, which will result into not offering all subjects in favour of the handicapped persons. The system, which has been followed, is defective. An attempt is made by the learned counsel to submit before this Court that if there is an increase in the non clinical subjects, then rotation system will have to be changed. No doubt, if there are more non clinical subjects, then in what manner rotation can be carried out, will be a question which :6: :6: :6: requires consideration, but that is an hypothetical question before this court and, therefore, at this stage we are not interested in deciding the said question. When the contingency arises, we will consider that question. But one thing is certain, even at that time also we will have to take into consideration the equitable view of the matter and balance will have to be struck down to offer each and every subject in favour of the handicapped persons, while rotating the clinical and non clinical seats. How to rotate the seats in that event is a question to be considered when the occasion arises and when the circumstance arises. Presently, taking into consideration that out of the eight subjects, one subject is non clinical and seven subjects are clinical, we find that non clinical subject is repeated after offering seven subjects in clinical branch to the handicapped persons. Since there is one seat in a year, repetition will be after seven years in the present facts and circumstances of the case. Since we have observed that each subject has to be absorbed and the subject of Oral Pathology and Microbiology cannot be offered in 2009, it is for the respondents to decide which of the subjects, out of the seven subjects, is to be offered to the handicapped person. We will not indulge into :7: :7: :7: specifing the subject, because it is for the authority to consider which subject has to be offered this year and in the commencing year by way of reservation in favour of the handicapped person. We only observe that the present reservation is not in consonance with the rotation system, which will offer an equal opportunity to the handicapped persons to get post graduate admission in the respective subjects which are available in the State of Maharashtra. 6. We further find that the reservation for handicapped persons is further required to be carried out by way of reservation in favour of the Scheduled Caste , Scheduled Tribes and other sorts of reservations either constitutionally provided and/or provided by the State Government. Therefore, the only seat which goes to the physically handicapped person will always go in favour of open candidate, but it will equally go into reservation system and that constitutional reservation shall also be observed in respect of this seat. Our judgment should not be taken as providing any reservation in favour of the handicapped persons and that too, in favour of open candidates. All constitutional reservations shall apply to the handicapped reserved :8: :8: :8: seats. Therefore, we find merit in the petition to the extent we made observations above. We quash and set aside the reservation made in so far as Oral Pathology and Microbiology for the year 2009. We direct the respondents to select any other subjects, excepting the subjects which have been repeated earlier, to provide a reservation in favour of the handicapped persons for the year 2009. We further direct the respondents to prepare a further reservation, except for a moment that there is only one reservation seat for candidate of handicapped category for the next five years, applying all tests stated above and publish the reservations well in advance in prospectus so that the handicapped candidates know well in advance the reservation made by the respondents. 7. At the fag-end of this judgment, learned Government Pleader Mr Masurkar, submitted that whatever observations and directions are given by this Court will be followed from the next year. This is a last resort of the respondents to nonsuite the petitioner. The petitioner has approached for getting certain relief in this Court. When we find that there is merit in the contention, the petitioner is entitled to the relief as desired from this Court. :9: :9: :9: We do not find any substance in the said submission except the ego of the department to be maintained. 8. The petition is disposed of accordingly. Rule absolute as stated above. (D.B.BHOSALE.J.) (S.B.MHASE, J.) (D.B.BHOSALE.J.) (S.B.MHASE, J.) (D.B.BHOSALE.J.) (S.B.MHASE, J.)