Vidhi Himmat Katariya vs The State Of Gujarat

Vidhi Himmat Katariya and others ..Petitioners

Versus

The State of Gujarat and others ..Respondents

WITH

WRIT PETITION(C) NO. 900/2019 WRIT PETITION(C) NO. 1026/2019

JUDGMENT

M.R. SHAH, J.

In all the writ petitions, the respective petitioners – students

have prayed for an appropriate writ, order or direction directing

1 the respondents – State Government to treat the petitioners

eligible for reservation under Persons with Disability (PwD

category) and grant them admission in MBBS Course for the

academic year 2019­20. It is the case on behalf of the respective

petitioners that all of them are eligible to pursue MBBS Course

and they shall be granted admission under the PwD category as

they are suffering from ‘locomotor disability’. All of them are

seeking admission to MBBS Course in the reserved category

under PwD quota.

2. That Section 32 of the Right of Persons with Disabilities Act,

2016 (hereinafter referred to as the ‘2016 Act’), which came into

force with effect from 19.04.2017 provides for reservation of not

less than 5% in government educational institutions.

Accordingly, the Medical Council of India notified the Regulations

for providing 5% seats to candidates with benchmark disability in

accordance with the provisions of the 2016 Act. It is the case on

behalf of the petitioners that process of admission for MBBS

Undergraduate course for the academic year 2019­2020

commenced in the last week of October, 2018 and the eligible

candidates were to submit applications on­line between

2 01.11.2018 to 30.11.2018. That the admit cards were released

on 15.04.2019 and the examination was held on 5.5.2019,

followed by declaration of result on 5.6.2019. All the respective

petitioners appeared in the NEET (UG) 2019 and were declared

successful. However, it is required to be noted that in the

meantime the Board of Governors in supersession of the Medical

Council of India amended the Regulations of Graduate Medical

Education, 1997, by notification dated 4.2.2019, whereby

Appendix ‘H’ came to be added to the erstwhile Regulations, 2017

– providing for minimum degree of disability to be 40%

(Benchmark Disability) in order to be eligible for availing

reservation for persons with specified disability. Appendix ‘H’

further provided that in case of ‘physical disability or locomotor

disability’, the applicant may be assessed for “Both hands intact,

with intact sensation, sufficient strength and range of motion” as

essential to be considered eligible for medical course”. As

observed hereinabove, thereafter the result of NEET (UG) 2019

came to be published in the month of June, 2019. As per the

requirement, all the respective petitioners appeared before the

Medical Board. However, all the respective petitioners were not

fulfilling the requisite criteria as per Appendix ‘H’ to notification

3 dated 04.02.2019 in the list published by the State Government

on 29.06.2019. The petitioners were declared non­eligible for

medical course. That thereafter the petitioners appeared before

the Medical Appellate Board and the Medical Appellate Board

also declared the petitioners not eligible for medical course.

Hence, the respective petitioners have preferred the present

petitions under Article 32 of the Constitution of India for the

afore­stated reliefs.

3. Learned Advocate appearing on behalf of the respective

petitioners have vehemently submitted that the case of the

petitioners for admission in the MBBS Course under the reserved

category of PwD for the academic year 2019­20 shall not be

governed by notification dated 04.02.2019, and that they shall be

governed by the MCI Regulations, 2017. It is submitted that the

relevant date to ascertain eligibility of the petitioners for medical

course is to be determined on the date when the process of

selection commenced, i.e., on 01.11.2018. It is submitted that

on the relevant date MCI Regulations, 2017, dated 22.01.2018,

were applicable and therefore eligibility, as such, for medical

course is to be determined in terms of the provisions of the said

4 Regulations. It is submitted that Appendix ‘H” to the notification

amending the Regulations, 2017, which came into force with

effect from 04.02.2019, therefore shall not be applicable.

3.1 It is further submitted by the learned counsel appearing on

behalf of the petitioners that rules of game cannot be changed

midway, as per the settled proposition of law. In support of his

above submission, learned counsel for the petitioners has heavily

relied upon the recent decision of this Court dated 30.05.2019 in

Writ Petition (Civil) No. 55 of 2019, titled Janhit Abhiyan v. Union

of India. It is submitted that in the said decision, this Court has

held that the EWS reservations could not be made applicable

midway after the selection process for medical PG of 2019, which

commenced in the month of November, 2018, whereas

notification reserving EWS quota came in February/March, 2019.

3.2 It is further submitted by the learned counsel appearing on

behalf of the petitioners that even otherwise the petitioners are

eligible under Regulations, 2019 also as they fulfil the required

percentage disability between 40­80%. It is submitted that the

minimum percentage disability to be eligible for availing

reservation under PwD is 40%. It is submitted that “PwD not

5 eligible for medical course” is stated as per the Regulations, 2019

to be beyond and in excess of 80%, which is not the case in

hand. It is submitted that the relevant provisions of Regulations,

2019 – “Both hands intact, with intact sensation, sufficient

strength and range of motion are essential to be considered” has

been applied by the State Government to non­suit the petitioners

for medical course in an arbitrary manner and without

application of mind. It is submitted that while rejecting the

petitioners to be not eligible for medical course, the State

Government has not at all considered the fact that PwD is bound

to have certain problems including the parameters mentioned in

Appendix ‘H’ [Both hands intact, with intact sensation, sufficient

strength and range of motion are essential to be considered] with

clause (f) of Clause 4(1) of the Regulations, 2019.

3.3 It is further submitted by the learned counsel appearing on

behalf of the petitioners that while applying the parameters

mentioned in Appendix ‘H’ with clause (f) of Clause 4(1) of

Regulations, 2019 [Both hands intact, with intact sensation,

sufficient strength and range of motion are essential to be

considered], the State Government did not consider the facts

6 that, petitioner no.1 has good muscle power, does gripping and

activities of daily living with modifications; petitioner no.3 is right

side dominant and his right hand is perfectly fine; the range of

motion in left hand is not nil, rather restricted, does activities of

daily living with little difficulty and the affected (left) hand has

good muscle power as well; petitioner in Writ Petition (C) No. 900

of 2019 is right side dominant and his right hand is perfectly

fine; affected body part is left hand only. Left hand has good

pinch with modification and does daily activities with upper limb

right side; petitioner in Writ Petition (C) No. 1026 of 2019 is left

side dominant and his left hand is perfectly fine; affected body

part is right hand only.

3.4 Making the above submissions, it is prayed to allow the

present petitions and direct the respondents to consider the case

of the petitioners for admission in MBBS Course in the PwD

quota as per merit.

4. The present petitions are vehemently opposed by Shri

Aniruddha P. Mayee, learned Advocate appearing for the State of

Gujarat. It is vehemently submitted by the learned counsel

appearing on behalf of the State that the respective petitioners

7 are not fulfilling the criteria as per notification dated 04.02.2019.

It is submitted that the case of the respective petitioners was

considered not only by the Medical Board but by the Medical

Appellate Board also and experts have specifically opined that the

respective petitioners are not eligible for admission in MBBS

course under PwD quota. It is submitted that even subsequently

also the petitioners were examined by the Medical Board of

AIIMS, New Delhi and even the Medical Board of AIIMS has also

opined against the petitioners and has opined that the respective

petitioners are not eligible for admission in medical course under

PwD quota. It is submitted that when the experts have opined

that the respective petitioners are not eligible for admission in

medical course as they do not fulfil the requisite eligibility criteria

as per Regulations, 2019, they are rightly denied admission in

medical course under PwD quota.

5. The present petitions are also vehemently opposed by

learned counsel appearing on behalf of the Medical Council of

India. A detailed reply affidavit has been filed on behalf of Board

of Governors in supersession of the Medical Council of India. It is

submitted that MCI while dealing with the issue of persons with

8 disability had formed an independent Expert Committee

comprising of eminent doctors in various specialities. It is

submitted that the amendments made in the Graduate Medical

Regulations, 1997 vide MCI notification dated 04.02.2019 are in

accordance with the report/recommendations furnished by an

independent Expert Committee headed by the Director, AIIMS,

New Delhi.

5.1 It is further submitted by the learned counsel appearing on

behalf of Board of Governors that a medical student pursuing

MBBS course after becoming a doctor will be treating humans

and it is very essential that a student is able to acquire the

necessary skill and expertise during the MBBS course. It is

submitted that Regulation 4(3) has been substituted in the

Graduate Medical Education Regulations, 1997 vide MCI

notification dated 04.02.2019, whereby it is provided that 5% of

the seats shall be reserved for “persons with benchmark

disability” as specified under the 2016 Act. It is submitted that

the substituted Regulation 4(3) further provides that the specified

disability given in the Schedule to 2016 Act is adopted and

incorporated in Appendix ‘H’ to the Regulations. It is submitted

9 that it further provides that the eligibility of the persons with

specified disability to pursue course in medicine has to be dealt

with in accordance with Appendix ‘H’ – Guidelines regarding

admission of students with “Specified Disabilities” under the

2016 Act with respect to admission in MBBS course.

5.2 It is further submitted by the learned counsel appearing on

behalf of the Board of Governors that Appendix ‘H’ in the MCI

notification dated 04.02.2019, inter alia, provides that the

persons with locomotor disability of less than 40% are eligible to

pursue MBBS course but are not eligible to be granted the benefit

of reservation under PwD quota. It is submitted therefore that

when the respective petitioners do not fulfil the admission criteria

as per Appendix ‘H’ to notification dated 04.02.2019 and even all

the expert bodies – Medical Board, Medical Appellate Board and

even the Medical Board of AIIMS, New Delhi have opined that the

respective petitioners are not eligible for admission in MBBS

course, the respective petitioners are rightly denied admission in

the MBBS course under PwD quota.

5.3 Now so far as the submission on behalf of the petitioners

that notification dated 04.02.2019 shall not be applicable and the

10 erstwhile Regulations shall be applicable and the relevant date

should be the date on which the process for admission has

started, i.e., in the month of November, 2018, it is vehemently

submitted that the relevant date for eligibility criteria would be

the date on which the petitioners were to get admission. It is

submitted therefore that the date on which the petitioners

applied for admission in medical course under PwD quota and

appeared before the Medical Board, that should be the relevant

date and the notification came into force on 04.02.2019, the

same shall be applicable.

5.4 Making the above submissions, it is prayed to dismiss the

present writ petitions.

6. We have heard the learned counsel for the respective parties

at length.

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

11 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. 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

12 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 unamended Graduate Medical Education Regulations, 1997.

However subsequently and before the admission for the academic

13 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. 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.

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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.

9. In view of the above and for the reasons stated above, the

present petitioners are not entitled to the reliefs as prayed.

15 Hence, all the writ petitions filed under Article 32 of the

Constitution of India deserve to be dismissed and are accordingly

dismissed. However, in the facts and circumstances of the case,

there shall be no order as to costs.

……………………………………..J. [ARUN MISHRA]

…………………………………….J. [M.R. SHAH]

NEW DELHI; …………………………………….J. October 04, 2019 [B.R. GAVAI]

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