Vidhi Himmat Katariya and Others v. the State of Gujarat and Others
M. R. SHAH, J.
1. In all the writ petitions, the respective petitioners – students
have prayed for an appropriate writ, order or direction directi ng the
respondents – State Government to treat the petitioners eli gible for
reservation under Persons with Disability (PwD category) and grant
them admission in MBBS Course for the academic year 20 19-20. 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 admis sion
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.
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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 tha n
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 proces s
of admission for MBBS Undergraduate course for the academic ye ar
2019-2020 commenced in the last week of October, 2018 and the eligible
candidates were to submit applications on-line between 01.1 1.2018 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 disa bility 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 Boar d. However,
all the respective petitioners were not fulfilling the requisite criteria as
per Appendix ‘H’ to notification dated 04.02.2019 in the list published
by the State Government on 29.06.2019. The petitioners were declared
non-eligible for medical course. That thereafter the petitioners appeared
before the Medical Appellate Board and the Medical Appellat e 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 afore-stated reliefs.
3. Learned Advocate appearing on behalf of the resp ective
petitioners have vehemently submitted that the case of t he petitioners
for admission in the MBBS Course under the reserved category of PwD
VIDHI HIMMAT KATARIYA AND OTHERS v.
STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]
for the academic year 2019-20 shall not be governed by notificat ion
dated 04.02.2019, and that they shall be governed b y the MCI
Regulations, 2017. It is submitted that the relevant date to ascertain
eligibility of the petitioners for medical course is to b e 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 provision s of the said
Regulations. It is submitted that Appendix ‘H” to th e 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 appear ing 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 re cent
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 reserv ations 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/M arch,
2019.
3.2 It is further submitted by the learned counsel appear ing on
behalf of the petitioners that even otherwise the petitioners are eligible
under Regulations, 2019 also as they fulfil the required percentage
disability between 40-80%. It is submitted that the minimum percentage
disability to be eligible for availing reservation under PwD is 40%. It is
submitted that “PwD not eligible for medical course” is st ated 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 non-suit 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
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mentioned in Appendix ‘H’ [Both hands intact, with intact sensatio n,
sufficient strength and range of motion are essential to be considere d]
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, 2 019
[Both hands intact, with intact sensation, sufficient strength and rang e
of motion are essential to be considered], the State Government did
not consider the facts 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 activi ties 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 doe s
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 perfec tly
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 Sh ri
Aniruddha P. Mayee, learned Advocate appearing for t he State of
Gujarat. It is vehemently submitted by the learned counsel ap pearing
on behalf of the State that the respective petitioners are not fulfilling
the criteria as per notification dated 04.02.2019. It is submitted that the
case of the respective petitioners was considered no t only by the
Medical Board but by the Medical Appellate Board also and exp erts
have specifically opined that the respective petitioners are not eligible
for admission in MBBS course under PwD quota. It is submitt ed 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 o pined that the
VIDHI HIMMAT KATARIYA AND OTHERS v.
STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]
respective petitioners are not eligible for admission in me dical 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 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 furni shed by an
independent Expert Committee headed by the Director, AIIM S, New
Delhi.
5.1 It is further submitted by the learned counsel appearing on
behalf of Board of Governors that a medical student pursuing MB BS
course after becoming a doctor will be treating humans and it is very
essential that a student is able to acquire the nec essary skill and
expertise during the MBBS course. It is submitted that Regulation 4(3)
has been substituted in the Graduate Medical Education Regula tions,
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 submitt ed that the
substituted Regulation 4(3) further provides that the specified disability
given in the Schedule to 2016 Act is adopted and inc orporated in
Appendix ‘H’ to the Regulations. It is submitted 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 Appe ndix ‘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 notif ication
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dated 04.02.2019 and even all the expert bodies – Medic al 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 petitione rs
that notification dated 04.02.2019 shall not be app licable and the
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 p etitioners
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 relev ant
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 t he
present writ petitions.
6. We have heard the learned counsel for the respective parti es
at length.
6.1 The respective petitioners are suffering from loc omotor
disability and they are seeking admission in the MBBS course und er
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 ha nds
intact, with intact sensation, sufficient strength and range of motion’
are essential to be considered eligible for medical course. A s per the
opinion of the Medical Board, Medical Appellate Board and eve n the
Medical Board of AIIMS, New Delhi, the respective petitioners are
not eligible for admission in MBBS course under PwD quota as th ey
do not fulfil the essential criteria to be fulfilled as per Appe ndix ‘H’.
Therefore, as such, the respective petitioners are n ot 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.
VIDHI HIMMAT KATARIYA AND OTHERS v.
STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]
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 consider ed as per the
provisions prior to 04.02.2019 and more particularly prevailing as on
01.11.2018. The aforesaid has no substance. The releva nt essential
eligibility criteria is required to be considered when the petitioners were
to get admission in the MBBS course under PwD quota. It is require d
to be noted and so stated in the reply affidavit filed on behal f of the
MCI that the Expert Committee submitted the report – “Guidelines for
admission of persons with Specified Disabilities”, which w as 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 s aid Expert
Committee Report should be communicated to the Ministry of Hea lth
& Family Welfare in view of the schedule for counselling for admission
to MBBS course for the academic year 2018-19. Howev er, for
admission for the academic year 2018-19, 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 unamend ed Graduate
Medical Education Regulations, 1997. However subseq uently and
before the admission for the academic year 2019-20 are given,
notification dated 04.02.2019 has been published and the G raduate
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 sou ght to be
contended on behalf of the petitioners. As observed hereinab ove, the
essential eligibility criteria as per Appendix ‘H’ i s 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 ac tually
seeking admission and after NEET result is declared. Ther efore, the
relevant date for considering the essential eligibilit y criteria as per
Appendix ‘H’ shall be the date on which the candidates – peti tioners
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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 noti fication
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 Appella te Board
and even the Medical Board of AIIMS, New Delhi consisting of the
experts have opined against the petitioners and the ir cases are
considered in light of the relevant essential eligi bility criteria as
mentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation,
sufficient strength and range of motion’. Therefore, when the exper ts
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 pr ayed. Hence, all
the writ petitions filed under Article 32 of the Constitution of India
deserve to be dismissed and are accordingly dismissed. However, i n
the facts and circumstances of the case, there shall be no o rder as to
costs.
Kalpana K. Tripathy Petitions dismissed
VIDHI HIMMAT KATARIYA AND OTHERS v.
STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]