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2024 DIGILAW 1453 (RAJ)

Poonam Arya D/o Dr. Mohan Arya v. Union of India

2024-10-22

SAMEER JAIN

body2024
JUDGMENT : 1. The present petition is filed under Article 226 of the Constitution of India for violation of Article 14, 16, 21 of the Constitution of India, with the following prayers:- “It is, therefore, most respectfully prayed that the Hon’ble Court may call for the entire record concerning the case and by issuing writ, order or direction or in the nature thereof:- (I) The impugned order dated 17.06.2014 declaring petitioner not eligible to do MBBS Course be quashed and set aside and declare the decision of the medical council of India to be interpreted to mean the disabled category candidate who have locomotor disability of upper limb too are eligible for doing MBBS Course. (ii) Further hold the petitioner to be eligible under the physically handicapped quota for admission. In the alternative declare the decision of only allowing candidates of locomotor disability of lower limb for admission as violative of Section 39 of the Disability Act, 1955. (ii-a) The regulation for admission to undergraduate medical course/regulation-guidelines of MCI be declared null and void to Section 39 of the disabilities Act of 1995.Section 39 is reiterated below:-Section 39- All educational institution to reserve seats for persons with disabilities: all government educational institutions and other education institutions receiving aid from the government, shall reserve not less than three percent seats for persons with disabilities. (iii) Issue any other writ, order or direction, which this Hon’ble Court deems fit and proper, may kindly be passed in favour of the petitioner. (iv) Cost of the writ petition be also awarded in favour of the petition.” 2. The factual matrix of the instant matter is that the petitioner had applied online for All India Pre-Medical/Pre-dental Entrance Test (AIPMT) 2014-15 and secured a third rank under the category of person with disability. The dispute arose when Vardhman Mahaveer Medical College and Safdarganj Hospital, New Delhi, declared the petitioner ineligible for admission in the medical course as per the MCI/DCI guidelines, as petitioner was suffering from right sided hemiplegia and from permanent physical impairment of right lower and upper limb, and in terms of percentage 50% of disability lower limb and upper limb (Annexure-3). 3. Subsequently, being aggrieved by the certificate dated 17.06.2014, based on the guidelines of MCI, the present petition is filed. 4. 3. Subsequently, being aggrieved by the certificate dated 17.06.2014, based on the guidelines of MCI, the present petition is filed. 4. In this background, learned counsel for the petitioner had submitted that during the pendency of this present writ petition, petitioner had completed the MBBS course and secured a degree in the year 2021, and had also completed Basic Life Support Training at B.J. Medical College Civil Hospital Campus Ahmadabad, on 22.01.2018. 5. Thereafter, upon successful completion of MBBS, the petitioner appeared for entrance examination qua Post Graduate course, wherein Medical Board had issued another certificate of disability dated 26.10.2021, holding petitioner ineligible and unfit for pursuing Post Graduation, due to the upper limb disability, however the same was challenged by filing another writ petition i.e. SBCWP No. 1050/2020 titled as Dr. Poonam Arya Vs. Union of India. 5. Learned counsel appearing on behalf of the petitioner had further submitted that qua the amendment in the Right of Persons with Disability Act, 1995 and The Indian Medical Council Act, 1956 by the Right of Persons with Disability Act, 2016, the medical council had issued a notification No. MCI-34(41)/2019-Med./112862 dated 13.05.2019 qua which the person with disability are eligible to pursue MBBS course. 6. Consequently, learned counsel appearing on behalf of the petitioner had submitted that the Coordinate Bench of this Court in Dr. Poonam Arya (supra), vide order dated 24.01.2022, considering the amended percentage criteria and eligibility qua person with disability as specified in Appendix-IV under the notification No. MCI-_18(1)/2018-Med./187262 of Gazette of India dated 13.03.2019, issued under Section 33 of the Indian Medical Council Act, 1956, directed the petitioner as an interim measure to appear before the SMS Medical College for consideration of case qua issuance of certificate of disability for the purpose of admission in Non-Surgical Branch, wherein the Medical Board found the petitioner eligible to pursue post graduation, as per amended Rules and Regulations issued by MCI notification (supra). 6. Learned counsel appearing on behalf of the petitioner had submitted that, the Coordinate Bench of this Court had further considered the expert opinion of the Medical Board, wherein it was stated that the petitioner was suffering from permanent physical impairment i.e., Locomotor Disability of 45%. 8. Moreover, as per the expert opinion qua physical condition of the petitioner, the petitioner was found to be fit and well-suited for pursuing Non-Surgical Branch in Post Graduation Course. 9. 8. Moreover, as per the expert opinion qua physical condition of the petitioner, the petitioner was found to be fit and well-suited for pursuing Non-Surgical Branch in Post Graduation Course. 9. Consequently, the Coordinate Bench of this Court, qua the aforesaid, granted finality to the interim order and permitted the authorities to consider the case qua petitioner’s admission in Post Graduation Course and granted benefit of physical disability certificate, as issued by the authorities. 9. In light of the aforesaid, the Coordinate Bench of this Court vide judgment dated 24.01.2022, granted participation of petitioner to pursue non-surgical branch and post-graduation in Psychiatry at Ranchi Medical College. 10. Learned counsel Shri Angad Mirdha, appearing on behalf of the respondents, had neither refuted the contentions made by the petitioner nor the benefit granted qua participation to pursue Non-Surgical Branch, by the Co-ordinate Bench of this Court, to the petitioner. Moreover, was unable to apprise the Court qua the fact whether said order of the Coordinate Bench is put to challenge or not. 11. Upon a perusal of the record and considering the ratio encapsulated in the judgment passed by the Co-ordinate Bench of this Court in Dr. Poonam Arya (supra) has made the following observations:- 11.1 That the petitioner is suffering from lower and upper limb disability, however, as per amendment in the guidelines the only impediment was qua disability in upper arm. 11.2 That as per the notification No.MCI-_18(1)/2018-Med./187262 dated 13.03.2019 qua locomotor disability including specified disability, wherein as per the amended guidelines, the candidate having disability from 40 to 80 percent is entitled to Person with Disability quota. Appendix IV of the notification is reiterated below:- “Guidelines regarding admission of students with “Specified Disabilities” under the Rights of Persons with Disabilities Act, 2016 with respect to admission in Postgraduate Courses in Modern Medicine. 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. 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 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). Sr. No . Disability Type Type 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. Physic al Disability A. Locomotor Disability, including Specified Disabilities (a to f). a. Leprosy cured person* b. Cerebral Palsy** c. Dwarfism d. Muscular Dystrophy e. Acid attack victims f. Others*** such as Amputation, Poliomyelitis, etc. 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% * Attention should be paid to loss of sensations in fingers and hands, amputation, 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 intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course. 11.3 That in the instant matter, the petitioner is suffering from 50 percent disability, therefore the petitioner is eligible and fit, subject to the above said guidelines (Supra) at the time of admission in Post Graduate Medical College in Non-Surgical Branch. 11.3 That in the instant matter, the petitioner is suffering from 50 percent disability, therefore the petitioner is eligible and fit, subject to the above said guidelines (Supra) at the time of admission in Post Graduate Medical College in Non-Surgical Branch. 11.4 That Medical Board has found the petitioner eligible for admission in Non-Surgical Branch. Opinion of the Medical Board dated 21.01.2022 is reiterated as below: - “1. She has Right Spastic Hemiparesis as a result of Stroke in childhood at the age of 3 months. She is having 45% Permanent Physical Impairment. 2. As per Gazette Notification No. MCI/18(1)/2018-Med/18762 dated 13.03.2019, locomotor disability where both hands are intact with intact sensation, sufficient strength and range of motion are essential to be considered to be eligible for Medical Course. 3. As per Hon’ble Court direction about PG in Non Surgical Branch Admission looking to her capabilities, we are of the opinion that on examination, the candidate has involvement of non dominant right upper and lower limbs and is structurally intact and is partially functional, and is of non progressive nature and may be considered for following Non Surgical Branches.” 11.5 That the petitioner has involvement of non-dominant right upper and lower limbs and is structurally intact and is partially functional and is of non-progressive nature, that made the petitioner fit and eligible for Non-Surgical Branch as per expert opinion of medical board. 12. This Court considering the medical board opinion and following the principle of judicial discipline wherein, Co-ordinate Bench of this Court considering the Appendix IV of the amended guidelines (Supra) dated 13.03.2019, and considering the opinion of the Medical Board, had concluded that the persons with disability between 40 to 80 percent are eligible for admission in medical college to pursue Post Graduation Course. Accordingly, this Court deems it apposite to make the following observations:- 12.1 That as petitioner has already completed the MBBS course and secured a degree for the same in 13.03.2021, therefore, vide notification dated 13.05.2019, the petitioner is eligible to pursue her MBBS course. 12.2 That the petitioner is pursuing PG in MD psychiatry in Ranchi. 13. This Court is mindful towards the efforts and future of the petitioner and motivated to encourage the person who fall under the category of persons with disability to pursue their education. 12.2 That the petitioner is pursuing PG in MD psychiatry in Ranchi. 13. This Court is mindful towards the efforts and future of the petitioner and motivated to encourage the person who fall under the category of persons with disability to pursue their education. The Court’s compassionate stance serves as a beacon of hope for individuals with disabilities, empowering them to pursue their educational aspirations. By recognizing the inherent potential within each individual, regardless of ability, the Court fosters an inclusive environment conducive to growth. Being aware qua the fact that education is a fundamental right, essential for unlocking human potential. This Court’s support bridges the gap between societal barriers and equal opportunities, motivating individuals with disabilities to strive for academic excellence. This enlightened approach not only upholds the principles of justice but also cultivates a culture of empathy, encouraging society to value diversity and promote inclusivity. 14. Therefore, in light of the above, certificate of locomotor disability dated 17.06.2014, which has rendered the petitioner ineligible is set aside. 15. Accordingly, the present petition is allowed. Pending applications, if any, stand disposed of.