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2022 DIGILAW 1843 (GUJ)

AYUSHI MANSUKHBHAI MOVALIYA v. STATE OF GUJARAT

2022-12-22

BHARGAV D.KARIA

body2022
ORDER : 1. Heard learned advocate Mr. Vaibhav A. Vyas for the petitioner, learned advocate Mr. Vikas V. Nair for respondent no. 6 and learned Assistant Government Pleader Mr. Krutik Parikh for the respondent State. 2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “(A) Quash and set aside the impugned report dated 9.12.2021, Annexure-A to this petition as well as report dated 2.5.2022, Annexure-B to this petition, whereby the petitioner is declared as not eligible for admission to medical course. (B) Declare and hold that the petitioner is eligible for admission to Under Graduate Medical Courses in the quota of person with disability (PWD) and consequently direct the respondent authorities to admit the petitioner to Under Graduate Medical courses along with other eligible and meritorious candidates as per her entitlement. (C) Pending admission and final disposal of this petition the Honorable Court may be pleased to direct the respondent authorities to reexamine the petitioner by an independent review medical board or by any other competent authority as may be deemed just and proper to the Honorable Court. (D) Pending admission and final disposal of this petition the Honorable Court may be pleased to direct the respondent authorities to consider the case of the petitioner for admission to Under Graduate Medical courses under PWD quota as per her entitlement. (E) Award the cost of this petition. (F) Grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.” 3. Brief facts of the case are that the petitioner was desirous of seeking admission to medical courses and therefore, applied for appearing in National Eligibility cum Entrance Test (UF) 2021-NEET (UG). The petitioner is a physically disabled candidate suffering from “Left Forearm Radial Club Hand Deformity” and therefore, applied under quota for Person with Disability (PWD). 3.1 The petitioner obtained Disability Certificate issued by the Issuing Medical Authority, Surat, Gujarat on 05.08.2021. According to the said certificate, the petitioner is having Locomotor Disability and the diagnosis in her case is “LT forearm radial club hand deformity.” The certificate stipulated that the petitioner has 50% temporary disability in relation to her body as a whole. 3.1 The petitioner obtained Disability Certificate issued by the Issuing Medical Authority, Surat, Gujarat on 05.08.2021. According to the said certificate, the petitioner is having Locomotor Disability and the diagnosis in her case is “LT forearm radial club hand deformity.” The certificate stipulated that the petitioner has 50% temporary disability in relation to her body as a whole. 3.2 The petitioner appeared in National Eligibility Entrance Test (NEET-UG) Exam 2021 in the category of PWD and secured 140 marks out of 720 marks. 3.3 The petitioner filed an application to get admission in M.B.B.S. Course in the category of Person with Disability (PWD). The petitioner was informed to remain present for the purpose of document verification on 27.11.2021. As the petitioner had applied under the category of PWD, the petitioner was examined by the Medial Board on 9.12.2021. 3.4 On the basis of the report of Person with Disability (PWD) Candidates - Undergraduate (UG) Medical Board 2021-2022, the petitioner was treated as not eligible for medical courses by the Medical Board. 3.5 The petitioner therefore, preferred Special Civil Application No. 5810/2022 before this Court which was disposed of as withdrawn vide order dated 05.04.2022 so as to enable the petitioner to appear before the Appellate Board for Medical Examination. 3.6 The petitioner thereafter preferred a detailed appeal on 19.04.2022 before the respondent no. 5-Appellate Medical Board of Admission Committee for Provisional Undergraduate Medical Courses. 3.7 Respondent no. 5 dismissed the appeal by report dated 2.05.2022 whereby the petitioner is declared to be “not eligible for medical course.” 3.8 The petitioner therefore, has filed this petition with the aforesaid prayers challenging the decision of respondent no. 2 to the effect that the petitioner is not eligible for admission in medical course. 4. Learned advocate Mr. Vaibhav Vyas for the petitioner submitted that action of the respondent authorities of declaring the petitioner as ineligible for medical courses is absolutely illegal, arbitrary and discriminatory. 4.1 It was submitted that the impugned action of the respondents would result in frustration of provisions contained in section 32 of the Right of Persons with Disabilities Act, 2016. 4.2 Learned advocate Mr. Vyas submitted that so far as the students seeking admission in MBBS course are concerned, the guidelines for the same is prescribed by the Board of Governors in super-session of Medical Council of India vide Notification dated 13.05.2019. 4.2 Learned advocate Mr. Vyas submitted that so far as the students seeking admission in MBBS course are concerned, the guidelines for the same is prescribed by the Board of Governors in super-session of Medical Council of India vide Notification dated 13.05.2019. It was submitted that the appendix of the said guidelines regarding admission of students with specified disabilities under the Right of Persons with Disabilities Act, 2016, provides for the candidates having Locomotive disability which is specified in column no. 4 (specified disability having more than 40% and less than 80% disability would be considered as eligible for medical courses under PWD quota). 4.3 It was submitted that it is further provided in the said guidelines that even the candidates with more than 80% disability may also be allowed on case to case basis considering their functional competency which will be determined with the aid of assisted devices. 4.4 It was further submitted that item no. F of specified disability in the guidelines provides for other type of Locomotive Disability such as imputation, polio myelitis etc. It was submitted that in the explanation to the same it is provided that both the hands of the candidate concerned must be intact, with intact sensations, sufficient strength and range of motion and such candidates will be eligible to be considered for admission to medical course. 4.5 Learned advocate Mr. Vyas submitted that the petitioner is suffering from the disability known as “Left Fore Arm Radial Club Hand” and disability of the petitioner is assessed as 50%. It was submitted that the petitioner is eligible for being considered for admission to Under Graduate Medical Course even as per the guidelines prescribed by the competent authority. 4.6 Learned advocate Mr. Vyas submitted that both the hands of the petitioner are intact with intact sensation and the petitioner is having sufficient strength inasmuch as the petitioner can lift weight upto 10 Kgs with her left hand and there is no difficulty in the range of motion and therefore, as per the guidelines, the petitioner is eligible to be considered for medical courses. It was submitted that the petitioner can perform all the routine activities in a normal manner inspite of disability suffered by her. The petitioner can stitch clothes with both her hands. It was submitted that the petitioner can perform all the routine activities in a normal manner inspite of disability suffered by her. The petitioner can stitch clothes with both her hands. Thus the disability of the petitioner would not come in way of the petitioner in undergoing medical course and will not in any manner hamper the duties and responsibilities to be performed by her after completion of the said course. 4.7 Learned advocate Mr. Vyas submitted that since the petitioner was treated to be ineligible by the Medical Board, the petitioner would not be in a position to secure admission to medical courses for all times to come. 4.8 It was submitted that Appendix H-1 to the Graduate Medical Educational Regulations provides the guidelines regarding admission to students with “Specified Disabilities” under the Right of Persons with Disabilities Act, 2016 with respect to admission in MBBS, more particularly, it provides that “attention should be paid to loss of sensations in fingers and hands...” and “both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course.” It was submitted that though the petitioner is fulfilling above eligibility criteria which are specified in the guidelines and which are essential for admission to medical courses, the petitioner came to be treated as ineligible mechanically on the basis of nomenclature of the disability. 4.9 Learned advocate Mr. Vyas further submitted that even from the bare perusal of the report dated 2.05.2002, it is evident that the sensation of both the hands is normal and even the reflex movement is normal. It was submitted that the only discrepancy appears to be Limb Length Discrepancy (LLD) between olecranon process to ulnar styloid process which according to the Appellate Medical Board is 5 cm short in left hand. It was submitted that in other words, the distance between the ankle and the wrist of the left hand is short by 5 cm as compared to that of the right hand, however, there are no findings that due to the said LLD, the functions of the left hand are not in accordance with the guidelines. 4.10 Learned advocate Mr. Vyas further submitted that out of total five numbers of respondent no 4-Medical Board of ACPUGMEC and respondent no. 5-Appellate Medical Board of ACPUGMEC, two members were common. 4.10 Learned advocate Mr. Vyas further submitted that out of total five numbers of respondent no 4-Medical Board of ACPUGMEC and respondent no. 5-Appellate Medical Board of ACPUGMEC, two members were common. It was submitted that two members of Appellate Medical Board who were the members of the Medical Board had already submitted their report holding the petitioner to be ineligible and therefore, they would always try to justify the earlier report and will not take a contrary view and therefore, report dated 2.05.2022 is vitiated on this ground itself. 4.11 Learned advocate Mr. Vyas further submitted that the petitioner is ready and willing to be reexamined by an independent Review Medical Board or any other authority as this Court deems fit. 4.12 Learned advocate Mr. Vyas submitted that both the Medical Board as well as the Appellate Board had acted in an absolutely mechanical manner whereby the provisions contained in Welfare Legislation are given a complete go-bye. It was submitted that on account of the impugned action on part of the respondent authorities, the very basic object and purpose of the provisions contained in the Rights of Persons with Disabilities Act, 2016 gets frustrated inasmuch as a meritorious candidate in the form of the petitioner is deprived of right to admission in Under Graduate Medical Course inspite of the seat having been reserved for such quota. 4.13 It was submitted that the cut off marks prescribed by the authorities for unreserved PWD category is between 122 to 137 marks, whereas the petitioner has secured 140 marks and therefore, on the basis of marks secured by the petitioner, the petitioner was eligible for being admitted to Under Graduate Medical Educational Courses (UG). However, merely on account of the impugned action of the respondent authorities, the petitioner is deprived of right to secure admission. 5. On the other hand, learned Government Pleader Mr. Krutik Parikh submitted that the issue of granting of admission to the petitioner is no more res integra in view of the decision of Apex Court in case of Vidhi Himmat Katariya and Others vs. State of Gujarat and Others rendered on 4th October, 2019 in Writ Petition (C) No. 885/2019. 5. On the other hand, learned Government Pleader Mr. Krutik Parikh submitted that the issue of granting of admission to the petitioner is no more res integra in view of the decision of Apex Court in case of Vidhi Himmat Katariya and Others vs. State of Gujarat and Others rendered on 4th October, 2019 in Writ Petition (C) No. 885/2019. It was submitted that the three-Judge Bench of the Apex Court has considered in detail all the arguments advanced on behalf of the petitioner herein in similar situation and held that the Court cannot sit in appeal over the findings of the expert body including the Medical Board or the Medical Appellate Board. It was also pointed out that as per Rule 6 as amended by Graduate Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Amendment) Rules, 2018 (For short “the Amended Regulation, 2018”) the certificate as prescribed by the Act 2016, to get the admission in PWD quota, has to be obtained from the Medical Board constituted for this purpose by the State Government and such certificate is to contain the extent of disability and suitability of such candidate for undertaking M.B.B.S. Course. It was therefore, submitted that the petitioner was found not eligible by the Medical Board and the Medical Appellate Board for admission to medical courses. 5.1 Reference was also made to the Appendix “H-1” which was amended by Graduate Medical Education Regulations, (Amendment), 2019 which also provides that the candidate who is to be considered eligible for the medical course should have both hands intact, with intact sensations, sufficient strength and prescribed range of motion. It was pointed out that the petitioner was having disability of “Left Forearm Radial Club Hand Deformity” and therefore it cannot be said that both the hands of the petitioner are intact and accordingly, the Medical Board and Appellate Medical Board found the petitioner not eligible for medical courses. 5.2 It was further pointed out that merely because the Medical authority has issued Disability certificate in a prescribed format in the year 2021, the petitioner cannot be said to be eligible only on that ground for admission in M.B.B.S. course. 6. Learned advocate Mr. Vikas Nair for respondent no. 5.2 It was further pointed out that merely because the Medical authority has issued Disability certificate in a prescribed format in the year 2021, the petitioner cannot be said to be eligible only on that ground for admission in M.B.B.S. course. 6. Learned advocate Mr. Vikas Nair for respondent no. 6 submitted that this Court in case of Sathe Vaibhavi Sanjay vs. State of Gujarat and Others in Special Civil Application No. 2448/2022, vide order dated 11.02.2022 has dismissed the petition on similar line. 7. Having heard the learned advocates for the respective parties and having gone through the material on record, it is not in dispute that the petitioner is having the physical disability as found by the Medical Board and the Medical Appellate Board. The petitioner has based her case for getting admission in M.B.B.S. Course under PWD quota upon the Graduate Medical Education Regulations (Amendment), 2019 which substituted Appendix “H-1” which provides for guidelines regarding admission of students with “Specified Disabilities” under the Act, 2016. Relevant portion of Appendix “H-1” reads as under: “Appendix “H-1” Guidelines regarding admission of students with “Specified Disabilities” under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS Course. Note: 1. The “Certificate of Disability” shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities (Divyangjan) on 15th June, 2017. 2. The extent of “specified disability” in a person shall be assessed in accordance with the “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” notified in the Gazette of India by the Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities (Divyangjan) on 4th January 2018. 3. The minimum degree of disability should be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. 4. The term ‘Persons with Disabilities’ (PWD) is to be used instead of the term ‘Physically Handicapped’ (PH). S. No. Disability type Types of Disabilities Specified Disability Disability Range Eligible for Medical Course, Not Eligible for PWD quota Eligible for Medical Course, Eligible for PWD Quota Not eligible for Medical course 1. 4. The term ‘Persons with Disabilities’ (PWD) is to be used instead of the term ‘Physically Handicapped’ (PH). S. No. Disability type Types of Disabilities Specified Disability Disability Range Eligible for Medical Course, Not Eligible for PWD quota Eligible for Medical Course, Eligible for PWD Quota Not eligible for Medical course 1. Physical Disability (A) Locomotor Disability, including Specified Disabilities (a to f) (a) Leprosy cured person* Less than 40% disability 40-80% disability Persons with more than 80% disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices, if it is being used, to see if it is brought below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily. More than 80% (b) Cerebral Palsy** (c) Dwarfism (d) Muscular Dystrophy (e) Acid attack victims (f) Others*** such as Amputation, Poliomyelitis, etc. *Attention should be paid to loss of sensations in fingers and hands, amputations, as well as involvement of eyes and corresponding recommendations be looked at. **Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations be looked at. ***Both hands intact, with their intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course. 8. Together with the aforesaid Appendix “H-1” it is also necessary to refer to the notification dated 4th May, 2018 by which Gujarat Professional Medical Courses (Regulation of Admission in Undergraduate Course)(Amendment) Rules 2018 has come into force. Rule 6 of the earlier Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Course) Rules, 2017 is substituted as under: “6. Reservation for Physically Disabled person Five percent of available seats in Government and Grant in aid institution in each category shall be reserved for person with benchmark disabilities in accordance with the provisions of the Right of Persons with Disabilities Act 2016 as provided by Medical Council of India, New Delhi from time to time. The certificate shall be obtained From Medical Board constituted for this purpose by the State Government. The certificate shall contain extent of disability and suitability of such candidate for undertaking the course. The admission on aforesaid reserved seats shall be subject to furnishing of certificate duly issued by competent authority empowered by the State Government in this behalf.” 9. The certificate shall be obtained From Medical Board constituted for this purpose by the State Government. The certificate shall contain extent of disability and suitability of such candidate for undertaking the course. The admission on aforesaid reserved seats shall be subject to furnishing of certificate duly issued by competent authority empowered by the State Government in this behalf.” 9. On conjoint reading of above Rule 6 with Appendix “H-1” a student is eligible to get admission in M.B.B.S. course in PWD quota provided such student is having benchmark disability as per the Appendix “H-1” together with the certificate which is to be issued by the Medical Board constituted for this purpose by the State Government containing the extent of disability and suitability of such candidate for undertaking the M.B.B.S. course. 10. In view of the above clear provision of the Rules of 2018 and 2019, it would be germane to refer to the following findings of the Apex Court in case of Vidhi Himmat Katariya and Others (supra): “6.1 The respective petitioners are suffering from locomotor disability and they are seeking admission in the MBBS course under PWD category. As per notification dated 04.02.2019 and Appendix ‘H’ - Guidelines regarding admission of students with ‘Specified Disabilities’ under the 2016 Act with respect to admission in MBBS course, a candidate suffering from locomotor disability of less than 40% shall be eligible to pursue MBBS course but not eligible to be granted the benefit of reservation under PWD quota. It further provides that ‘both hands intact, with intact sensation, sufficient strength and range of motion’ are essential to be considered eligible for medical course. As per the opinion of the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi, the respective petitioners are not eligible for admission in MBBS course under PWD quota as they do not fulfil the essential criteria to be fulfilled as per Appendix “H.” Therefore, as such, the respective petitioners are not fulfilling the essential eligibility criteria provided as per Appendix ‘H’ and therefore they are not eligible for admission in the medical course under PWD quota. 7. 7. It is mainly contended on behalf of the petitioners and it is submitted by the learned counsel appearing on behalf of the petitioners that the NEET UG 2019 brochure was released on 01.11.2018 and the notification amending Regulations, 1997 whereby Appendix ‘H’ is added to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the case of the petitioners are required to be considered as per the provisions prior to 04.02.2019 and more particularly prevailing as on 01.11.2018. The aforesaid has no substance. The relevant essential eligibility criteria is required to be considered when the petitioners were to get admission in the MBBS course under PWD quota. It is required to be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert Committee submitted the report - “Guidelines for admission of persons with Specified Disabilities”, which was placed before the Executive Committee of the Council in its meeting held on 5.6.2018 wherein after due discussion and deliberations it was decided to approve the same. It was also decided that the said Expert Committee Report should be communicated to the Ministry of Health & Family Welfare in view of the schedule for counselling for admission to MBBS course for the academic year 201819. However, for admission for the academic year 201819, it was at the stage of a draft notification and the Graduate Medical Education Regulations, 1997 were not amended in light of the recommendations of the Expert Committee constituted by the MCI which has issued the Disability Guidelines, this Court directed to give admission as per the un-amended Graduate Medical Education Regulations, 1997. However subsequently and before the admission for the academic year 201920 are given, notification dated 04.02.2019 has been published and the Graduate Medical Education Regulations, 1997 have been amended, as above. Therefore, in the facts and circumstances of the case, it cannot be said that ‘Rules of the game are changed midway’ as sought to be contended on behalf of the petitioners. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H’ is required to be considered at the time when the candidates were seeking admission in the medical course under PWD category. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H’ is required to be considered at the time when the candidates were seeking admission in the medical course under PWD category. It is also required to be noted that even the candidates seeking admission in PWD quota are required to appear before the concerned Medical Board at the time of actually seeking admission and after NEET result is declared. Therefore, the relevant date for considering the essential eligibility criteria as per Appendix ‘H’ shall be the date on which the candidates - petitioners sought admission in the MBBs course under PWD quota. Much prior thereto, notification dated 4.2.2019 has been issued and published and therefore the respective petitioners shall be governed by notification dated 04.02.2019. 8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix “H.” Both hands intact, with intact sensation, sufficient strength and range of motion. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts - in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala-fides.” 11. It is pertinent to note that the decision in case of Vidhi Himmat Katariya and others (supra) is by three-Judge Bench rendered on 29th October, 2018 whereas the decision in case of Purswani Ashutosh (supra) is dated August 24, 2018 rendered by two-Judge Bench of the Supreme Court. Therefore, later decision rendered on 29th October, 2019 by the three-Judge Bench is required to be taken in to consideration in view of the amendment of the Rules as well as the Regulations thereafter. 12. Therefore, later decision rendered on 29th October, 2019 by the three-Judge Bench is required to be taken in to consideration in view of the amendment of the Rules as well as the Regulations thereafter. 12. In view of the foregoing reasons, the petition is not entertained and is accordingly dismissed as being devoid of any merit. Notice is discharged.