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2008 DIGILAW 80 (PAT)

Bihar Combined Entrance Company v. Vishakha Gupta

2008-01-15

CHANDRAMAULI KR.PRASAD, RAJESH BALIA

body2008
Judgment 1. Having heard learned counsel for the petitioner and considering the application filed under Sec. 5 of the Limitation Act, we are satisfied that the appellant was prevented by sufficient cause from filing the appeal within time. 2. Consequently, this application is allowed and delay in filing the appeal is condoned. 3. We have also heard learned counsel for the parties on merit of the appeal. 4. This appeal is directed against the judgment of the learned Single Judge dated 31.8.2007 passed in C.W.J.C. No. 10320 of 2007 directing the respondents-appellants that the petitioner be examined by the Head of the Department of Orthopedics, P.M.C.H, certifying as to whether petitioner is suffering from disability of upper limb (lower trunk) or is only suffering from locomotory disability of lower limb to the extent of 50 % and if it so, writ-petitioner be admitted even if it results removing the last person admitted in the disabled quota in handicapped category. 5. The writ-petitioner had come before this Court seeking admission in the Medical Course for 2007 Batch in terms of the guidelines and practices followed in the matter of considering the admissions to the disable candidates to the Medical Colleges by a combined selection process in terms of the quota for such admission. 6. The writ-petitioner had applied to be admitted in the Medical course through Bihar Combined Entrance Competitive Examination, 2007 claiming reservation for handicapped candidates. She had submitted her certificate dated 15th of June, 2005 issued by the Civil Surgeon, Nalanda certifying that she suffers from post Polio having infirmity of both the lower limbs and the extent of her locomotory disability is 50%. 7. Since the petitioner had passed the written test and after qualifying in the same, she was called for counselling for admission in the College where she could pursue her studies. At the time of counselling, she was subjected to medical examination by the Counselling Authority in which she was found unfit for admission by putting the endorsement on the examination slip as unfit and that she is suffering from disability of lower trunk. 8. This endorsement is dated 20th July, 2007. 9. As a result of the aforesaid, the writ petitioner was not allowed to take admission. 10. 8. This endorsement is dated 20th July, 2007. 9. As a result of the aforesaid, the writ petitioner was not allowed to take admission. 10. It appears that during the course of hearing, learned counsel for the writ petitioner had disputed the opinion of the experts, who had examined her during counselling and requested that this Court may consider verification of her disability by any other experts. 11. This submission of the learned counsel for the writ petitioner found favour with the learned Single Judge, and the Court directed that the petitioner be examined by the Head of the Department of Orthopaedic Surgery, P.M.C.H, Patna, who shall certify as to whether petitioner is also suffering from disability of upper limbs (lower trunk) or she is suffering only from locomotory disability of lower limbs to the extent of 50 per cent, and above. If it is so certified, then she may be admitted to medical course, even if it results in removing the last person admitted to medical course under quota reserved for physically handicapped. 12. We find that in compliance of the Courts order, writ petitioner was examined by two senior doctors of the Department of Orthopaedic Surgery, P.M.C.H, Patna including Head of Department on 14.9.2007, who reported that she has disability of lower limbs only and no disability of upper limbs (lower trunk) was found. The report dated 14.9.2007 reads as under: "She is a patient of post polio has defects of lower limb and walks with Elbow crutch. She had a disability certificate No. 471 dated 15.6.2006, issued by Civil Surgeon, Nalanda. Examination upper limbGrip strength good (Powers-5). ObservationNo deformity is visible in her upper limbs. She can bear her body weight on crutches effortlessly. She can efficiently do all her daily activities normally with her upper limbs. Muscle power of fingers, elbows, and shoulder is normal. We inform that she has no disability in her upper limb." 13. Since no mention was made specifically about disability of lower trunk, as endorsed on the application of the petitioner, the Bihar Combined Entrance Examination Board vide its letter dated 27.9.2007 sought specific opinion in respect of disability involving lower trunk (above waist) inviting attention to endorsed report and the requisites for eligibility for entry into quota for disabled. 14. Since no mention was made specifically about disability of lower trunk, as endorsed on the application of the petitioner, the Bihar Combined Entrance Examination Board vide its letter dated 27.9.2007 sought specific opinion in respect of disability involving lower trunk (above waist) inviting attention to endorsed report and the requisites for eligibility for entry into quota for disabled. 14. Vide communication dated 31.10.2007 the Board of Doctors who examined the petitioner on 14.9.2007 reaffirmed their opinions that she has no disability of upper limbs. It was stated as under: "The X-ray in left side is X-ray of the Trunk while she stands on her disabled lower limbs. The Trunk shows a definite curvature. But the vertebrae again do not show rotation. So it confirms again that visible deformity of spine is due to compensation of spine to the deformity of lower limbs and spine itself is not deformed. We understand that deformity and disability are two different words and we are talking about disability only and not deformity. Conclusion: We confirm that Ms. Vishakha Gupta has (a) No disability of upper limb (b) No disability of trunk above the waist or below the waist. (c) Disability of lower limbs only. 15. The aforesaid opinions clearly spelt out distinction between disability and deformity, and found that deformity extends to lower trunk do not affect the locomotion of the upper limbs. 16. On receipt of this certificate, the Examination Board again sought an opinion of previous Board, and while it did not disagree with the opinion about fitness of upper limbs as certified by PMCH doctors and distinction about the disability and deformity, but said the candidate is otherwise not medically fit. This stand was contrary to specific stand taken by the appellants in their counter filed before learned Single Judge in the writ petition. In the counter it was referred to more than once that because of locomotory disability of upper limbs, the petitioner was found unfit. 17. In paragraph no. 10, it was stated it is to certify that during the Counselling based on Bihar Combined Entrance Examination Board, the petitioners disability in her upper limb involving lower trunk (above waist) was not detected during the medical examination conducted by aforesaid panel of doctors. But with the passing of the time the petitioners disability in her upper limb involving lower trunk (above waist) was clearly detected. 18. But with the passing of the time the petitioners disability in her upper limb involving lower trunk (above waist) was clearly detected. 18. Again in paragraph no. 1 it was stated during the course of medical verification and examination, the above panel of doctors deputed by Department of Health, Govt, of Bihar, found that apart from her disability of lower limbs, she is also suffering from disability of upper limbs and therefore, found her unfit for admission in MBBS courses. 19. In the aforesaid back-ground, learned Advocate General contends that once the writ petitioner was found unfit for admission in the Medical courses and the report relied on by the Counselling Committee, a direction for examination by the third expert ought not to have been issued by this Court in exercise of extraordinary jurisdiction and therefore, for the purposes of considering the admission on the basis of the said report, should not be considered. 20. Learned counsel for the respondents has urged that since it has now been established that the writ petitioner falls within the parameters of the disability entitling her to the benefit of reservation for handicapped, she must be allowed admission to Medical courses after removing the last person admitted in the disabled quota in her category in compliance of the Courts order. 21. The guidelines, on which both the parties relied, have been enclosed in the Application Form for admission. The relevant provisions of the guidelines for admission in Degree courses in medical profession against disabled quota are contained in paragraph nos. 1, 4, 7 and 8, which reads as follows: "1.Persons with only locomotory disability of lower limbs between 50% to 70% but otherwise medically fit and having upper limbs fully functional and normal are allowed to the benefit of reservation under the disability Act. 1995 for admission against Disabled Quota seats to MBBS/PG Medical and other professional medical courses. 4. For availing the benefits of reservation in Disabled Quota, the locomotory disabled candidates with disabilities involving the lower limbs must fulfil the following criteria/guidelines:- (a) If the locomotory disability involves only one lower limb, it should not be less than 50 % and should not exceed 70 %. (b) If the locomotory disability involves both the lower limbs, the total disability should not exceed 70 % with a minimum of 50 %. (b) If the locomotory disability involves both the lower limbs, the total disability should not exceed 70 % with a minimum of 50 %. (c) The disability certificate should be produced by a duly constituted and authorized Medical Board by the Government of Bihar. (d) The candidate should have minimum eligibility criteria as per Medical Council of India guidelines and should be otherwise medically fit. 7. The candidate, seeking the benefit for reservation under Disabled Quota, should present him/herself before a Medical Board comprising of at least one expert/specialist from the speciality of Orthopaedics from State Medical Board in the State of Bihar and obtain a valid disability certificate from the Medical Board having been issued within three months prior to presenting his application for seeking admission in any medical course by claiming the benefit of reservation. 8. The disability certificate of the candidate from a Medical Board should not be more than three months old from the date of submitting his/her application for seeking admission under Disabled Quota." 22. The aforesaid provisions in the context of the present controversy reveals that disability which is relevant for the purpose, is locomotory disability of lower limbs and nothing else and that too, if the locomotory disability is between 50 to 70%, and locomotory ability of upper limbs to be fully functioning, only then a candidate is entitled to the benefits of reservation. If the disability of lower limbs is less than 50%, a candidate is not entitled to the said benefit. If it is more than 70%, a candidate will be disqualified to take admission in the medical courses. 23. What are the parameters of the medical terms, viz. lower limb or upper limb and otherwise medically fit, has not been detailed, but to us it appears that the disability spoken and referred to is locomotory disability of limbs, as mentioned in paragraph nos. 1 and 4 of the guidelines. The persons with locomotory disability of only lower limbs between 50 to 70 % but otherwise medically fit and having upper limbs fully functional and normal are allowed the benefit of reservation under the Disability Act, 1995 for admission against Disabled Quota seats to MBBS/PG Medical and other professional medical courses. 1 and 4 of the guidelines. The persons with locomotory disability of only lower limbs between 50 to 70 % but otherwise medically fit and having upper limbs fully functional and normal are allowed the benefit of reservation under the Disability Act, 1995 for admission against Disabled Quota seats to MBBS/PG Medical and other professional medical courses. The term otherwise medically fit in the context can only refer to medical fitness in the ordinary sense excluding the discomfiture of handicap on account of locomotory disability of lower limbs within the prescribed parameters. 24. Here, in this case, disability of lower limbs has been found to be in terms of requirement and has not been found otherwise by any of the reports. If that is so, only thing to be considered in the light of aforesaid guideline that she should be otherwise medically fit excluding locomotory disability of lower limbs or in the sense that her upper limbs must be fully functional and normal. 25. Paragraph no.4 of the guidelines provides different categories of locomotory disability for seeking admission in the medical profession, but for the present purpose this controversy is not before us. 26. Paragraph no. 8 of the aforesaid guidelines provides that disability certificate shall be issued by a duly constituted Medical Board of the State of Bihar. Paragraph no. 7, in that connection, lays down that the candidates seeking reservation under the Disabled Quota should present himself before a Medical Board comprising of at least one expert/specialist from the speciality of Orthopaedics from State Medical Board in the State of Bihar and obtain a valid disability certificate from the Medical Board having been issued within three months prior to presenting his application for seeking admission in any medical course by claiming the benefit of reservation. 27. The parties are on common ground that the requisite requirement of a Certificate of Disability from a duly constituted Medical Board obtained within three months before the date of application which is to be filed alongwith application is not adhered to. But as a matter of expediency for admission to a medical course, at the time of counselling, generally procedure is followed to verify the certificates submitted by the applicants, or even when no certificate is attached in terms of guidelines, the candidates are on the spot for examination by the doctors. But as a matter of expediency for admission to a medical course, at the time of counselling, generally procedure is followed to verify the certificates submitted by the applicants, or even when no certificate is attached in terms of guidelines, the candidates are on the spot for examination by the doctors. The petitioner has been found to be unfit to be admitted against the reserved quota. This practice suggests that guidelines are not strictly followed and no importance is being attached to Certificate of Disability attached with application, even if they are in accordance with the guidelines. But as a matter of course, physical disability is examined on the spot examination by the doctors. 28. Apparently, the guideline has been issued for the purpose of admission in degree courses of medical profession duly approved by the Medical Council of India. As a matter of fact, when a certificate in terms of guidelines is attached, no second examination is envisaged because; the certificate is to be from a duly constituted Board within proximate date of making application. The Examination Board is not justified in not insisting for issuing Disability Certificate issued by the duly constituted Medical Board by the Government of Bihar in that, regard, or not relying on such certificate when filed. It is because of non-following of guidelines that there is such type of litigation as is before us. 29. Now, it is expected that, in future, the guidelines are strictly followed in allowing the students of the medical profession for admission and if any improvement is needed, it is in domain of the authorities that effective guidelines can be provided and it is also within their domain to provide necessary infrastructures so that such a deserving candidate may not face any trouble in seeking admission. 30. Be that as it may, coming to the facts of the present case, undoubtedly, the endorsement of disability in the lower limbs and disability of lower trunk (above waist), does not reveal whether petitioner suffered from any disability of upper limbs or whether the petitioners upper limbs are not fully functional and strong. It also does not disclose what is disability of lower trunk and its effect on functional capacity of a candidate to take medical course. 31. This by itself does not say whether upper limbs are fully functional or not. It also does not disclose what is disability of lower trunk and its effect on functional capacity of a candidate to take medical course. 31. This by itself does not say whether upper limbs are fully functional or not. But from the counter submitted by the respondents as noted above it meant that petitioner has suffered from disability of upper limbs. This statement is not sustainable by any of the reports submitted before us including of the doctors who had made such endorsement. Stand now taken is quite contrary to what was given to the Board originally as referred in their counter, record of entire examination has not been placed before. 32. It has been contended by the learned Advocate General that locomotory disability can be for many reasons which include permanent deformity of the lower trunk, that is to say that apart from petitioners lower limb her upper limbs were also affected. He has also submitted that lower trunk affects the locomotion of the upper limbs. As per the opinion of appellants doctors, the movement of the patient from one place to another is affected by deformity of trunks. But difficulty in physical movement and discomfiture in sitting or standing is inherent in locomotory disability of lower limbs and by that reason alone a candidate cannot be treated as not otherwise medically fit. Medical fitness in the context of a physically disabled person suffering from locomotory disability of lower limbs must be not a part of such disability but unconnected with it. If it was not so, every disable person suffering from locomotory disability of lower limbs can be certified to be not otherwise medically fit. We are of considered opinion that otherwise medically fit can only refer to what is otherwise considered to be a normal health of a candidate, otherwise needed for every candidate, excluding disability or such problem that is inherently result of permissible disability. This is so that in spite of such physically disability of medical fitness, a reservation for admittance to professional courses of medicine has been envisaged by statutory provision. 33. In this back-ground, if we were to see that the condition of the disability requirement for being admitted to the medical courses as a disabled candidate, it is only permissible when a candidate having disability locomotory functions between 50 to 70 % of lower limb and fully functioned upper limbs. 33. In this back-ground, if we were to see that the condition of the disability requirement for being admitted to the medical courses as a disabled candidate, it is only permissible when a candidate having disability locomotory functions between 50 to 70 % of lower limb and fully functioned upper limbs. This goes to show parameter of reference is that disability should not be such as affects functional ability of upper limbs. Merely, by identifying other disability of lower trunk, really does not disclose as to whether the functional ability of upper limbs have been affected. 34. It seems that because of the situation created by the appellants themselves, as the patient has been issued certificate of the Medical Board on the spot by the Counselling Committee, the learned Single Judge was persuaded to direct examination of the writ petitioner by the Head of the Department of Orthopaedics Surgery, P.M.C.H, Patna in which the doctors have certified the petitioner to be fit to be admitted in the medical courses within the guidelines. Through the Court had not directed that opinion of Doctors of PMCH be verified by previous Board, yet on such verification, the previous Board has not disagreed with the conclusion about fitness of upper limbs of the petitioner but has opined that the candidate has to pursue her career keeping herself in standing position. The deformity aggravates on standing and as such she can not be considered as otherwise medically fit. 35. The last opinion is a general statement which goes with every physically handicapped person that his disability or physical problem aggravated with the strain of strenuous medical course. A physically handicapped with disability of lower limbs shall always be prone to aggravating disability while working on standing condition for long. In that sense every person suffering from locomotory disability of lower limbs, more particularly, polio stricken candidates, are to be kept out of consideration. This cannot be the reasonable reading of the provision. 36. Apart from above, the opinion of Doctors opining for the appellant is a projection in future and not about current condition of the candidate. This opinion can go with any other handicapped candidate or for that reason, on such opinion; a handicapped candidate can always be denied admission in rightful place of her merit position. 37. 36. Apart from above, the opinion of Doctors opining for the appellant is a projection in future and not about current condition of the candidate. This opinion can go with any other handicapped candidate or for that reason, on such opinion; a handicapped candidate can always be denied admission in rightful place of her merit position. 37. In the circumstances, in our opinion, it will be just and proper to direct the respondents-appellants to grant admission of the writ petitioner-respondent to the MBBS for the Session 2007-2008, if necessary, by raising an additional seat for her. This is necessary because the respondents have admitted next candidate in order of merit to MBBS course, but since she has not been impleaded and has already gone some length in course, it will be unjust too to dislodge her without hearing her. Moreover, it is not a case in which any irregularity of general Rules has taken place affecting a large number of candidates but is in the nature of one isolated case. 38. However, this will not be treated as a precedent for future, but the State Government should take appropriate steps to update the provisions in regard to the admission process in the medical courses in future. 39. Accordingly, the appeal stands dismissed. The respondents-appellants are directed to grant admission of the writ petitioner-respondent. However, observations about removing the last person admitted in the "Disabled Quota" are deleted but direction for raising an additional seat, if necessary, is maintained. 40. This order may be carried out within two weeks from the date of receipt/ production of a copy of this order. 41. No costs.