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Madhya Pradesh High Court · body

2007 DIGILAW 455 (MP)

MEDICAL COUNCIL OF INDIA v. NITIN MANTRI

2007-04-17

DIPAK MISRA, SHUBHADA R.WAGHMARE

body2007
Judgment ( 1. ) CALLING in question the defensibility and pregnability of the order dated 26-9-2006 passed by the learned Single Judge in W. P. No. 10648/2006 the appellant, Medical Council of India has preferred this appeal under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for brevity the Act ). ( 2. ) THE facts which are essential to adumbrated are that the respondent No. 1 invoked the extra-ordinary jurisdiction of this Court under article 226 of the Constitution of India for issue of a writ of mandamus to the respondents commanding them to allot a seat in MBBS Course to him in the handicapped category. It was pleaded that he is a handicapped person of unreserved category as per the certificate issued vide Annexure P-4. The said certificate indicates 40% blindness in the right eye with no vision and the left eye has been found with the vision of 6/7. Regard being had to the no vision in the right eye of the respondent No. 1 he was not allotted a seat for admission to the course of MBBS at the time of counselling. The said decision was taken on the bedrock of the letter dated 5-7-2001 issued by the Medical Council of India. ( 3. ) IT was contended before the learned Single Judge that the professional Examination Board had conducted a Pre-Medical Entrance examination under M. P. Medical and Dental Undergraduate Entrance examination Rules, 2006 (hereinafter referred to as pmt Rules) in which there is no restriction specifying exclusion of such category for admission. In paragraph 5. 1, 3% reservation has been provided for physically handicapped persons in Scheduled Castes, Scheduled Tribes, OBC and unreserved category and reservation has been specified to be horizontal and compartmentalized. The relevant provision stipulates that a candidate claiming admission in handicapped class shall file a certificate from District Medical Board and eligibility certificate from the Superintendent Vocational Rehabilitation centre for Physically Handicapped, Government of India, Ministry of Labour, napier and the writ petitioner had submitted a certificate to the respondents whereby he was found to be eligible to prosecute the study in the MBBS course. It was also put forth that under Rule 3 there is no restriction debarring the petitioner from the course. ( 4. It was also put forth that under Rule 3 there is no restriction debarring the petitioner from the course. ( 4. ) THE claim put forth by the respondent No. 1 was combatted by the state as well as the Medical Council of India contending, inter alia, that the professional Examination Board and the State of M. P. are bound by the instructions issued by the Medical Council of India and as per the directions of the Medical Council of India contained in letter dated 5-7-2001 the person who is visually handicapped is not entitled for admission in the MBBS Course and on that ground the writ petitioner had been denied the admission to the MBBS course. ( 5. ) BE it placed on record, on behalf of the Medical Council of India reliance was placed on the decisions rendered by the Apex Court in the cases of deputy Secretary, Deptt. of Health Vs. Sanchita Biswas (Civil Appeal no. 4694/2000) and Ku. Rekha Tyagi (Civil Appeal No. 7892/2001 ). Reliance was also placed on the letter dated 14-7-2003, Annexure R-l, which was issued by the Council in the light of the judgment rendered by the Apex Court. ( 6. ) THE learned Single Judge referred to the provisions contained in section 39 of the Persons with Disabilities (Equal Opportunities, Protection of rights and Full Participation) Act, 1995 (for brevity the Disabilities Act) and analysing the decision rendered in the cases of Sanchita Biswas (supra) and Ku. Rekha Tyagi (supra), came to hold that the Apex Court has not expressed any opinion as regards the resolution dated 5-7-2001 passed by the Medical Council of India. The learned Single Judge observed that the said decisions were rendered with regard to the question pertaining to applicability of Section 39 of the Disabilities Act in educational institution and Their Lordships have held that the aforesaid provision is applicable equally in respect of admission in educational institution. The learned Single Judge has also observed that before the Apex Court the question was not for consideration whether visually handicapped persons are entitled for admission or not though there is a reference to the resolution dated 5-7-2001 of the Medical Council of India. ( 7. ) IN view of the aforesaid analysis the learned Single Judge expressed the opinion that the said decisions do not create any impediment or remora. ( 7. ) IN view of the aforesaid analysis the learned Single Judge expressed the opinion that the said decisions do not create any impediment or remora. After expressing the said opinion the learned Single Judge adverted to the M. P. Chikitsya Shiksha Sanstha (Niyantran) Adhiniyam, 1973 (hereinafter referred to as the 1973 Act ). Section 10 of the aforesaid Act empowers the State government to make rules for carrying out the purpose of the said Act. In pursuance of the power conferred under the Act PMT Rules, 2006 have been framed. The learned Single Judge quoted the relevant Rule and after adverting to Rule 5. 1 came to hold that the said rule lays a postulate who would fall in the handicapped category and in the said Rule there is no qualifying provision excluding the visual handicapped persons and in the absence of the same the said rule has to apply in equal force to all categories of handicapped persons. The learned Single Judge did not accept the stand and stance of the Medical Council of India that Rule 3. 0 that there is provisions that the rules and regulations in force at the time of entrance examination conducted by the MCI/dci shall be applicable in the case on the foundation that there is neither any rule nor regulation which has come into force excluding the visually handicapped persons for admission in MBBS course and until and unless some rule or regulation is framed or placed on record, the resolution passed on 5-7-2001 cannot be regarded creating any kind of obstacle in granting the benefit to the visually handicapped persons who is suffering from visual deficiency. It was also held by the learned Single Judge that the resolution has not been adopted by the state Government and hence, the writ petitioner should not be regarded as ineligible to be called for counselling. Being of this view the learned Single Judge allowed the writ petition and directed the respondent No. 1, the writ petitioner to participate in the counselling and issue command to the respondent to consider his case for counselling as per the parameters. ( 8. ) WE have heard Mrs. Indira Nair, learned Senior Counsel along with miss Jasmit Chana for the appellant, Mr. Uttam Maheshwari, learned Counsel for the respondent No. 1, Mr. T. S. Ruprah, learned Additional Advocate general for the State and Mr. ( 8. ) WE have heard Mrs. Indira Nair, learned Senior Counsel along with miss Jasmit Chana for the appellant, Mr. Uttam Maheshwari, learned Counsel for the respondent No. 1, Mr. T. S. Ruprah, learned Additional Advocate general for the State and Mr. B. K. Mishra, learned Counsel for the respondent no. 3. ( 9. ) IT is submitted by Mrs. Nair, learned Senior Counsel for the appellant that the learned Single Judge has faulted in his appreciation of the decisions rendered in Ku. Rekha Tyagi (supra) and Sanchita Biswas (supra ). It is contended by her that the Apex Court has taken note of exclusionary part in its order and would go a long way to show what was the perception of the Apex court with regard to handicapped persons, but the learned Counsel further submitted that the 1973 Act and the PMT Rules, 2006 do not provide specifically for visually handicapped persons, but the learned Single Judge has erroneously held that in the absence of any exclusionary provision visually handicapped persons should be deemed to have been included. It is further propounded by her that the learned Single Judge has fallen into grave error in holding that in the absence of any rules required by the MCI excluding the visually handicapped persons the letter written by the Medical Council of India to the Chief commissioner, Disabilities would have no applicability. It is her further contention that the letter does not run counter to the rule but the learned Single judge has interpreted it as if the same contravenes the rules. ( 10. ) MR. Uttam Maheshwari, learned Counsel for the respondent No. 1, per contra, contended that the order passed by the learned Single Judge is absolutely impeccable and does not warrant any interference. It is his submission that the decisions rendered in the cases of Sanchita Biswas (supra) and Ku. Rekha Tyagi (supra), have rightly been distinguished by the learned Single judge. It is contended by him that the PMT Rules, 2006 does not prohibit visually handicapped persons and in the absence of any kind of prohibition interpretation placed by the learned Single Judge on the said rules cannot be faulted. Rekha Tyagi (supra), have rightly been distinguished by the learned Single judge. It is contended by him that the PMT Rules, 2006 does not prohibit visually handicapped persons and in the absence of any kind of prohibition interpretation placed by the learned Single Judge on the said rules cannot be faulted. Lastly, it is put forth by him that the learned Single Judge has referred to the provisions of the Medical Council Act and the overriding effect as that would find mention under Rule 3 but in the absence of any statutory rule or regulation holding the field the letter cannot be override the effect of the rules framed by the State. ( 11. ) TO appreciate the submissions raised at the Bar, it is apposite to refer to Section 2 (i) of the Disabilities Act which defines "disability". It reads as under:- (i) "disability" means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness;" Section 39 of the Act reads as under:- "39. AH 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. " What is mandated by Section 39 is that educational institutions should reserve seats for persons with disabilities. On a first glance it may appear that three per cent reservation should cover disability of all kindness. But a purposive interpretation has to be given. Section 2 (i), dictionary clause has to be read with in the backdrop of Section 39 of the Act. There has to be 3% reservation but that does not necessarily mean 3% reservation should cover all categories of disabled candidates in all courses. For example, a total blind person cannot be admitted to an engineering course. Similarly, a man with no vision in one eye and 6/7 in second eye may come within the conception of disability as per the definition clause but he may not be able to prosecute the medical studies. That would depend upon the decision of the expert body. To elaborate : Section 39 and section 2 (i) have to be purposively construed to bring the effect of the provision. That would depend upon the decision of the expert body. To elaborate : Section 39 and section 2 (i) have to be purposively construed to bring the effect of the provision. To further elaborate there cannot be less of reservation as provided in the statute but there can be compartmentalization of reservation depending upon the fact situation. ( 12. ) IN this factual backdrop, it is apposite to refer to Rules 2. 6 and 5. 1 of the PMT Rules, 2006. The same read as under:- "2. 6. "class" means Military Personnel (M. P.), Freedom Fighter (FF) NO CLASS (X) and FEMALE (F) as specified and laid down by Government of Madhya Pradesh. Physically Handicapped (PH)means as specified and laid down by Ministry of Labour, government of India for Vocational Rehabilitation of Physically handicapped. " 5. 1. For Physically Handicapped who are bonafide residents of madhya Pradesh belonging to ST, SC, OBC and Unreserved category three per cent (3%) seats are reserved for admission to mbbs/bds course. Reservation shall be horizontal and compartmentalized. The candidate claiming admission against these seats shall have to produce a certificate in the prescribed form from, District Medical Board and eligibility certificate from superintendent Vocational Rehabilitation Centre for Physically handicapped, Government of India, Ministry of Labour, Napier town, Jabalpur. " ( 13. ) IN Ku. Rekha Tyagi (supra), Their Lordships of the Apex Court have held as under:- "it may be noticed that the Medical Council of India (MCI) who issues guidelines for admission to the medical courses in the country, in fact, had taken a decision on 5-11-1999 indicating that there cannot be any reservation for admission into the MBBS course and Post-Graduate Medical Course for disabled persons, as provided in Section 39 of the Act. This decision, however, appears to have been reversed by the subsequent resolution of MCI dated 5-7-2001. Under the resolution dated 5-7-2001 it has been unequivocally indicated that 3% reservation for physically handicapped persons for admission into the medical courses should be followed excluding, however, for those who are visually handicapped and hearing defects. " ( 14. ) RULE 3. 0 of the PMT Rules reads as under:- "3. Under the resolution dated 5-7-2001 it has been unequivocally indicated that 3% reservation for physically handicapped persons for admission into the medical courses should be followed excluding, however, for those who are visually handicapped and hearing defects. " ( 14. ) RULE 3. 0 of the PMT Rules reads as under:- "3. General.- (i) Under Graduates Courses in MBBS and BDS shall be governed and regularised by MCI, DCI, University, autonomous Society of the College, State Government, government of India under the rules and regulations in force at the time of entrance examination, allotment, admission, amended from time to time. " ( 15. ) THE letter issued by the Medical Council of India dated 5-7-2001 states thus:- ". . . . . . The provisions of Section 39 of the Act were carefully studied and based on this an agreement was reached to follow 3% reservation for physically Handicapped for admission to medical course also. The categories of people under disabilities as classified under the Act covers the following three categories :-1. Visually Handicapped, 2. Persons suffering from hearing defects, 3. Physically handicapped with the locomotory disorders. The 3% of reservation under the above 3 categories has been apportioned as 1% under each category under Section 33 of the 1995 Act. It was also noted that the Govt. of Tamil Nadu in their g. O. No. 137, dated 29-1-1990 had also fixed the same percentage of reservation for these categories for admission to MBBS/ engineering etc. course. The Council further noted that the Sub-Committee in the same meeting had also noted that the Honble High Court of Calcutta in its judgment (Case No. MAT No. 3105 of 1998 and C. A. No. 7514 of 1998) had also agreed upon the apportioning of the reservation under the above three categories in respect of the posts under government. The same logic is applied for reservation for educational institutions also and taking the guidelines adopted by the Govt. of Tamil Nadu, the Committee was of the opinion that such apportioning of reservation is both logical and sustainable in the Court of Law. The Committee has concluded that the visually handicapped is not in a position to pursue the medical course and do the internship as corrected vision is absolutely necessary for the study and for the practice of Medicines. The Committee has concluded that the visually handicapped is not in a position to pursue the medical course and do the internship as corrected vision is absolutely necessary for the study and for the practice of Medicines. The hearing impairment will interfere with the training in medical education since the process of hearing of various signs and auscultation is absolutely essential to pursue the medical training and to follow the medical practice. In view of the above observations the visually handicapped and hearing disable should be deleted from this category and they should be considered invalid for admission in the MBBS. " ( 16. ) IT is borne on record that the General Body of the Council on 20-10-2003, the expert body, did not include visual disability. As per the guidelines issued by the MCI the persons with visual disability have not been made entitled for the benefit of 3% reservation of physically handicapped persons. ( 17. ) IN State of Kerala Vs. T. P. Roshna, (1979) SCC 580, it has been held as under:- "the Indian Medical Council Act, 1956 has constituted the Medical council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent substandard entrance qualifications for medical courses. " ( 18. ) IF the guidelines issued by the Medical Council of India are understood in proper perspective, there can be no trace of doubt that there has been apposite deliberation by the expert body and it has formed an opinion that visually handicapped persons are not suitable for the medical course. The expert body has thought it seemly to state that the said category would not fall within the physical handicapped category for the specific purpose. The said guidelines do not run counter to the provisions of the Act and the rules made by the State government. It is an expert opinion which is passed on the basis of absolute practical wisdom and its opinion cannot be marginalized. By no stretch of imagination, it can be held that the said guidelines supplant any of the provisions. It works in the purposive functionalism of the rules. It is an expert opinion which is passed on the basis of absolute practical wisdom and its opinion cannot be marginalized. By no stretch of imagination, it can be held that the said guidelines supplant any of the provisions. It works in the purposive functionalism of the rules. The expert body has found that visually handicapped persons cannot be brought into the categories of handicapped persons for the medical course. The learned Single judge has expressed the opinion that in the absence of the regulations or rules the same cannot be given effect to. In our considered opinion, the said view is neither correct nor sound inasmuch as the fixation of standard with regard to physical disabilities vis-a-vis the standard of the medical studies rests with the medical Council of India. ( 19. ) IN view of the aforesaid analysis, we allow the writ appeal and set aside the order passed by the learned Single Judge. There shall be no order as to costs. Writ Appeal allowed.