JUDGMENT : B.P. Dharmadhikari, J. 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties finally. 2. Considering the nature of controversy, it has become necessary to decide the controversy finally at the stage of admission itself. Accordingly, on 14.8.2017 we have issued notice for final disposal and it was made returnable on 21.8.2017. The exercise of filing affidavits continued upto 18.9.2017. Thereafter, we have taken up the matter today again. 3. During earlier hearing, controversy whether vacancies existed or not arose and on 7.9.2017 we were required to pass an order and time was given to the petitioner to make definite statement in this respect. On 14.9.2017 we have taken note of statement made by the learned A.G.P. that out of total 75 seats meant for PWDs. (person with disabilities) only 12 seats could be filled in by 7.8.2017 and thereafter leaving two seats as per orders of Aurangabad Bench, 61 seats were surrendered to General Quota. Learned A.G.P. pointed out that all seats were filled till after 30.8.2017, there is no vacancy. This date “30.8.2017” has inadvertently been typed as “30/01/2008” in order of this Court dated 14.9.2017. 4. It is to be noted that on 14.8.2017 this Court has ordered that though admission process undertaken by respondents would continue, one seat therein shall be filled in provisionally. 5. It is in this backdrop that parties have addressed the Court today finally. 6. Mr. S.R. Narnaware, learned Advocate for petitioner, submits that petitioner, otherwise a physically normal person, because of electrocution, lost lower limb in 2011. She suffered amputation above knee and hence, was diagnosed “disabled to the extent of 60%” on 21.9.2011. This was temporary determination and on 14.3.2012 very same Board determined disability of 70% permanently. 7. The petitioner passed H.S.S.C. examination in 201617 and secured 547 marks out of total 650 marks, i.e. 84%. She appeared in NEETUG2017 and succeeded in it. Her overall rank was 331124 and category rank was 31357 with category PH rank 37. It is claimed that she secured third position in Girl students in Vidarbha region. She was examined by Competent Authority for her admission on 1.8.2017 and said authority declared percentage of disability to be 80%. It is pointed out that because of this variance, petitioner obtained disability certificate again from Competent Authority and that authority on 3.8.2017 determined disability to be 80% only. 8. She was examined by Competent Authority for her admission on 1.8.2017 and said authority declared percentage of disability to be 80%. It is pointed out that because of this variance, petitioner obtained disability certificate again from Competent Authority and that authority on 3.8.2017 determined disability to be 80% only. 8. In merit list displayed for the purposes of admission after notice dated 7.8.2017, name of petitioner has been placed at serial no. 23 and she is found “not eligible” for admission in PWD (Person With Disability) category. However, she has been found eligible in General Category. 9. Mr. S.R. Narnaware, learned Advocate for petitioner, on the basis of these facts submits that 80% disability or amputation above knee does not disqualify petitioner from seeking admission to MBBS course in general category. If this be the position, physical disability apparent to everybody cannot be ignored and petitioner must be treated as 'person with disability'. He points out that only 12 vacancies out of total 75 were filled in through PWD and remaining were required to be surrendered in State Quota for admission in open category. He is relying upon Division Bench judgment dated 5.8.2011 in Writ Petition No. 5900/11 at Bombay (Shaikh Roshan Jahan Jawwad Ahmed vs. State of Maharashtra & others) to urge that there the extent of disability assessed at 88.33% was directed to be reduced to 70% and that student was given admission and has completed the course. The learned Counsel seeks parity and submits that distinction needs to be made between physical disability and functional disability. 10. Mr. M.K. Pathan, learned Assistant Government Pleader for respondent nos. 1 to 3, has relied upon reply affidavits. He points out that this Court did not stay admission process in PWD category or then did not direct respondents to keep a seat vacant for petitioner. Various Court matters were going on at different Benches and in absence of such a specific stay, direction that seat to be filled in should be provisional escaped attention. He submits that all Court orders were scrupulously obeyed and in this matter there was no other intention. The slip is accidental but then now after 30.8.2017 vacancies are not available. He also points out that supernumerary seat cannot be created and if Medical Council of India (MCI) allows it, appropriate decision in this respect can be taken. He submits that all Court orders were scrupulously obeyed and in this matter there was no other intention. The slip is accidental but then now after 30.8.2017 vacancies are not available. He also points out that supernumerary seat cannot be created and if Medical Council of India (MCI) allows it, appropriate decision in this respect can be taken. Medical Council of India is not party to the present petition. 11. Without prejudice to above submissions, he states that PWD is a technical concept which needs to be construed strictly within the four-corners of the Regulations prescribing it, i.e. Graduate Medical Education Regulation, 1997. He points out that locomotors disability of lower limbs between 50% to 70% alone qualifies for recognition as PWD. Here, percentage of disability is much more and on higher side. Therefore, petitioner has been rightly denied treatment as PWD. 12. He submits that respondents are bound by Medical Council of India Regulations and in absence of challenge thereto, the action of respondents cannot be faulted with. The Competent Authority has on 1.8.2017 worked out disability of 80%. Petitioner on her own then again got it verified and on 3.8.2017, same percentage has again been determined. Learned A.G.P. stresses that there are no allegations of any bias or malpractices against any Medical Board and no challenge to determination of extent of disability. 13. He argues that in chart prepared and published after 7.8.2017, against name of petitioner at serial no. 23 because of this percentage of disability, she is found not eligible for admission in PWD category. However, that does not mean that she could not have been considered in general category and hence, that fact has been clarified only in said list which points out status of persons with disability. According to him, that does not mean that person with 80% locomotors disability can be admitted in general category and said decision could have been taken at appropriate juncture. 14. He is placing reliance upon the Division Bench judgment of this Court in Writ Petition No. 9556/16 (Rutuja Dattatraya Raut vs. State of Maharashtra & others) dated 21.9.2016 delivered at Bombay. 15. 14. He is placing reliance upon the Division Bench judgment of this Court in Writ Petition No. 9556/16 (Rutuja Dattatraya Raut vs. State of Maharashtra & others) dated 21.9.2016 delivered at Bombay. 15. He has also submitted that though upon instructions some statements on facts have been made before this Court for the first time, those facts pertaining to electrocution or then surgery in 2011 are not pleaded in Writ Petition and, therefore, respondents are not in a position to deal with those facts. He, therefore, requests Court to ignore said contentions. 16. With the assistance of respective Counsel, we have perused papers. Stipulation of percentage of disability between 50% to 70%, validity thereof or then determination of percentage of disability in case of petitioner is not in dispute. The learned A.G.P. has attempted to urge that in 2011 disability was worked out at 60% temporarily and on 14.3.2012 it was worked out at 70%. In 2017 it has been worked out at 80%. He, therefore, urged that extent of disability appears to be increasing. However, we find the contention erroneous. Except for amputation above knee made in 2011, no other disability is pointed out by respondents. In present facts, we, therefore, cannot accept the contention that disability has been increasing or is increasing with age. Medical experts have not certified anything like this. 17. Perusal of Division Bench judgment dated 21.9.2016 in Writ Petition No. 9556/16 shows that petitioner there was suffering from congenital disorder in her lower limbs on account of Cerebral Palsy and that disability was about 68%. Committee constituted by Directorate of Medical Education & Research (DMER) certified the disability to be 76%. These facts are looked into and requirement that the range must be between 40 to 70% has also been considered. In paragraph 13, Division Bench has found that the disability of that petitioner could not have been reduced and candidate with disability above 70% cannot be given benefit of reserved quota. Opinion of experts that no external or artificial assistance by way of prosthesis or stint would reduce the percentage of disability of petitioner has also weighed with Division Bench. Hence, that Writ Petition was rejected. 18. However, in paragraph 4 of this judgment dated 21.9.2016, the judgment of Division Bench of High Court dated 25.6.2013 in Writ Petition No. 1532/13 (Dr. Hence, that Writ Petition was rejected. 18. However, in paragraph 4 of this judgment dated 21.9.2016, the judgment of Division Bench of High Court dated 25.6.2013 in Writ Petition No. 1532/13 (Dr. Nazreen Sartaj Ansari vs. Union of India & others) decision of Gujarat High Court in the case of Dr. Deval R. Mehta vs. Union of India & others reported at AIR 2011 Gujarat 33 are looked into. The Division Bench points out that said Division Bench took note of movements of petitioner in Court and then directed respondents to consider petitioner's case for admission to post graduate medical course in M.D. (Medicine) or in nonsurgical branch under the Physically Handicapped category. Before Hon'ble Apex Court in case of Dr. Deval R. Mehta (supra) candidate had suffered head injury and had right sided hemiparesis at level C4C5 of the vertebrae. He being medical practitioner having MBBS degree, was allowed to complete the MBBS course and was, therefore, held not ineligible for purposes of admission to postgraduate medical course. 19. In Writ Petition No. 5900/11 the petitioner was suffering from locomotors disability and was seeking admission to First Year Health Science course after clearing MHCET2011. The said petitioner had lost her both legs in railway accident on 7.10.2008. Before High Court, she contended that with prosthesis she was able to walk alone and she was also traveling in local trains. Judgment, in paragraph 5 shows how the Special Medical Board arrived at percentage of disability at 88.33%. We need not go into all those technical aspects. Ultimately in paragraph 11, while issuing Rule, by interim order this Court directed said petitioner (Shaikh Roshan Jahan) to be treated as not having physical disability in excess of 70%. Thus, disability assessed at 88.33% has been brought down to 70%. This direction is acquiesced into and that petitioner has completed MBBS course. 20. All judgments mentioned supra, therefore, attempt to correlate physical disability with functional disability. In present matter, the petitioner has been remaining present on dates of hearing and she is able to walk without any problem of her own without any prosthesis or stint and does not appear to suffer from any discomfort at least to this Court. However, this does not mean that we are ignoring determination of percentage of disability of 80% on 1.8.2017 by competent experts. 21. However, this does not mean that we are ignoring determination of percentage of disability of 80% on 1.8.2017 by competent experts. 21. Said determination and percentage, however, does not appear to have any bearing on learning for which petitioner aspires. Person with said/such disability can very well become an Advocate or then occupy a post as a Clerk or Teacher or any other similar post and perform office duties. With prosthesis or artificial limb, such person may also undertake some field duties. We, therefore, find no correlation between amputation above knee and the medical education. It needs to be noted that if percentage of disability in case of lower limb is on lower side, i.e. 70% or below, the student can be treated as PWD. However, if it is more than 70%, though disability exists, technically it is not recognized by law, and hence, the student like the petitioner is not entitled to be treated as PWD. The object of rehabilitation of PWD is looked into by this Court in judgment dated 5.8.2011 in Writ Petition No. 5900/11 (supra). The said object needs to be kept in mind while appreciating this treatment to PWD. The welfare measure, at least in present case necessitates that extent of disability above 70% must disqualify a student for a particular course. In other words, such disability above 70%, therefore, must have adverse impact on functions to be discharged or student's ability to learn. If it does not have such effect, a more disabled student like the petitioner cannot be treated as a general/normal student. Respondents have not pointed out any regulation or provision which disqualifies any disabled candidate or a more disabled candidate from consideration altogether. No distinction, therefore, can be made in present facts between a student with 50% to 70% disability and with 80% disability. 22. The respondents have rightly on 7.8.2017 found petitioner disqualified for admission in PWD category. However, they have also simultaneously held that she is eligible for admission in general category. The list is having heading “Status of persons with disability who have appeared for Special Medical Board and filled preference form”. Thus, while preparing said document, status of petitioner as PWD was known and looking to percentage of disability, she was declared not eligible as PWD. However, as said disability has got no bearing on medical education, she has been found fit for admission in general category. Thus, while preparing said document, status of petitioner as PWD was known and looking to percentage of disability, she was declared not eligible as PWD. However, as said disability has got no bearing on medical education, she has been found fit for admission in general category. Even before this Court, it is not pointed out why a Doctor should have both legs normal, i.e. fully functional. 23. Thus, we have got a person with physical disability, who on account of technical stipulations is being denied admission since percentage of her disability is 80%. This percentage of disability at 80% has got no bearing on her learning capacity and thereafter its practical use to administer health aid to patients. In this situation, we find that petitioner could not have been denied treatment as PWD only because in present matter percentage of locomotors disability of lower limb exceeds 70%. 24. However, facts like electrocution and, therefore, acquiring of disability at a later stage in life are not brought on record by the petitioner. The respondents, therefore, are not in a position to meet these facts. If the disability has got origin somewhere else, its relevance also may require due evaluation. 25. The respondents, therefore, were duty bound to give petitioner admission in MBBS course. Though we do not find the respondents at fault in not filling in a seat provisionally, a seat to accommodate petitioner is presently not available. MCI needs to be approached and if MCI permits, a seat can be provided to her. When administration prescribed 75 seats for PWD., only 12 could be filled in. 26. We are, therefore, inclined to grant petitioner opportunity to produce treatment papers and discharge card, etc. before the respondent no. 3 within 7 days from today. If such papers are produced, the respondent no.3 shall arrange for its verification and then find out correctness in assertion that amputation is on account of electrocution. If it is on account of electrocution, we direct the respondents to provide admission to petitioner in MBBS course against supernumerary post, if it is sanctioned by MCI. 27. The exercise to ascertain correctness of story of electrocution shall be completed within two weeks after the papers are received by respondent no.3. 28. If it is on account of electrocution, we direct the respondents to provide admission to petitioner in MBBS course against supernumerary post, if it is sanctioned by MCI. 27. The exercise to ascertain correctness of story of electrocution shall be completed within two weeks after the papers are received by respondent no.3. 28. In the meanwhile, in order to save time, the respondents shall also write to Medical Council of India with copy of this judgment for permission to create a supernumerary post to accommodate the petitioner. If such leave is granted by MCI, the petitioner shall then be admitted to first year MBBS course. 29. With these directions, we allow the Writ Petition and dispose it of. Rule is made absolute accordingly. No costs. C.C. is expedited.