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SCA/6412/2010 1/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6412 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DR.DEVAL
R MEHTA - Petitioner(s)
Versus
UNION
OF INDIA & 5 - Respondent(s)
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Appearance
:
MR
SN THAKKAR for Petitioner(s) : 1,
MR PS CHAMPANERI for
Respondent(s) : 1,
MR MITUL K SHELAT for Respondent(s) : 3,
MRS.
KRINA CALLA AGP for Respondent(s) : 4,5
MR HRIDAY BUCH for
Respondent(s) : 6,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
:24/11/2010
CAV
JUDGMENT
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
writ petition was preferred by petitioner to set aside the decision
of the 6th respondent refusing admission to the petitioner for the
post-graduate medical course under the physically handicapped
category. Further prayer was made to declare Rule 5.0 of the Rules
and Regulations for Admissions in Post Graduate Degree and Diploma
Medical Courses as ultravires the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereinafter referred to as `the
Disabilities Act’) for short) to the extent the same mandate that the
upper limbs shall be normal and that the locomotory disability in the
lower limbs must be between 50% to 70%. By a petition for amendment,
the petitioner has also challenged the Notification dated 25.03.2009
introducing amendment in clause 9(1)(a) to the Postgraduate Medical
Education Regulations, 2000.
2. The
petitioner was born on 02.12.1984, had a critical fall on 11.06.1985
and suffered a head injury, which was diagnosed as right sided
hemiparesis at level C4-C5 of the vertebrae. The effect was muscular
weakness of both the right upper limb and the right lower limb
resulting in decreased grip and wasting of muscles on the right side.
The petitioner on diagnosis has been declared as physically disabled
having 50% permanent physical impairment.
3. According
to the petitioner, after passing XII Std. Board Examination in
Science Stream from ICSE Board, he was granted admission on
28.12.2002 to the M.B.B.S. course with the Surat Municipal
Institution of Medical Education and Research (SMIMER) in the
physically handicapped category. He cleared his M.B.B.S. along with
one year compulsory rotatory internship in March 2009. On
20.05.2009, the petitioner was given the general registration No.
G-42048 by the Gujarat Medical Council and was conferred the M.B.B.S.
degree by Veer Narmad South Gujarat University on 26.02.2010. The
renewed disability certificate was issued on 18.11.2009 certifying
that the petitioner is physically disabled and having 50% permanent
physical impairment. The petitioner appeared in the examination on
29.01.2010 conducted by P.G. Medical Education Committee, Saurashtra
University, seeking admission to P.G. Medical course and had
qualified in the open merit/physically handicapped category.
07.04.2010 was the date fixed for counseling by the Saurashtra
University and three seats were reserved for physically handicapped
category. There were only three candidates, who had sought admission
in the physically handicapped category and the petitioner, being the
lone outsider having done graduation from another University, was
placed at Sr.No.3 in the said list of physically handicapped
candidates. The first candidate refused to opt for taking any seat
and the second physically handicapped category candidate opted for
MDTB and Chest course and therefore the petitioner had the option of
selection from any of the options reserved for the remaining two
seats of the physically handicapped category.
4. According
to petitioner the P.G. Medical Admission Committee after going
through disability certificate of the petitioner concluded that the
petitioner having 50% disability of upper limb is not eligible for
admission against reserved seats of physically handicapped persons in
view of guidelines of the Medical Council of India (hereinafter
referred to as `the M.C.I.’ for short).
5. The
petitioner appealed to the Vice Chancellor of the 6th respondent
University and also lodged his grievance with the State Commissioner
for Disabled Persons on 09.04.2010. After hearing the parties on
23.04.2010, the State Commissioner requested the 6th respondent
University to consider the petitioner’s case sympathetically, but the
6th respondent University after seeking guidelines from the 3rd
respondent M.C.I. and having not taken any decision, the petitioner
moved before this Hon’ble Court as second counseling was to start to
fill the reserved seat for handicapped out of open/general merit
category.
6. In
view of interim order passed by this Court, the petitioner has been
admitted in the postgraduate course of Medical Science against the
reserved seat for disabled persons, he having come within the zone of
consideration and having competed in the competitive examination.
Such admission has been taken subject to the decision of the case.
7. It
appears that M.C.I. with approval of the Central Government published
`The Post Graduate Medical Education (Amendment) Regulations 2009
(hereinafter referred to as `2009 Guidelines’, for short). By the
said amendment Sub-clause (1)(a) has been added in clause 9 under the
heading `Selection of Postgraduate Students’. A proviso has been
added after the sentence `General Category Candidates’ in the fourth
line of the first proviso to clause 9(2)(iv), as quoted hereunder:
“9(1)(a).
3% seats of the annual sanctioned intake capacity shall be filled up
by candidates with locomotory disability of lower limbs between 50%
to 70%.”
“45%
for persons with locomotory disability of lower limbs in the same
manner as stipulated in Clause 9(1)(a) above.”
8. The
petitioner has challenged the aforesaid Amending Regulations 2009
whereby 3% seats of the annual sanctioned intake capacity has been
limited only to the candidates with locomotory disabilities of lower
limbs between 50% to 70%.
9. The
main plea taken by the petitioner is that the aforesaid Amending
Regulations 2009 are ultravires Sec.39 of the Disabilities Act.
10. Learned
counsel for the petitioner would submit that petitioner having been
treated as disabled was admitted in M.B.B.S. course against 3% seats
reserved for disabled persons. Once he having been accepted as
disabled for the purpose of studying M.B.B.S. course, he cannot be
discriminated vis-a-vis other disabled persons for admission in
postgraduate course on the ground that he has upper limb disability.
It has no nexus with the object sought to be achieved.
11. Learned
counsel for the M.C.I. would submit that so long as the 3%
reservation is concerned, the policy of M.C.I. prescribing higher
disabilities than that provided under the Disabilities Act was within
its competence of M.C.I. Referring to a decision of Orissa High
Court in D.S. Rashmi Ranjan Vs. Chairman, JEE 2004
and others
in W.P.(C) Nos. 7877
of 2004 and analogous cases, he would contend that very often, it is
found that 40% of disability
provided under the Disabilities Act is of such a nature that it may
amount to grant of unfair advantage to such persons, and thereby
defeating the purpose behind the Disabilities Act. For example, if
there is a loss of phalanx or phalange of a finger, that may entitle
a candidate to claim 40% disability. The rationale behind the upward
revision from 40-60% to 50-60% is that a person with more aggravated
disability should be preferred against another, who suffers from
relatively minor disability. According to M.C.I., the decision
fixing the higher degree of disability has been taken with a view to
further the objective behind the Disabilities Act, and at the same
time maintain the standards of Medical Education under the Indian
Medical Council Act. 1956.
It
is submitted that the General Body of the M.C.I., based on the
recommendations of the Executive Committee, was of the view that
extending the benefit of reservation to persons suffering from
disability of upper limb should not be allowed, as the upper limbs
are required to elicit sign during the clinical examination, and
finer movements are desired for conduct of surgical procedure, and
accordingly, M.C.I. prescribed 50-70% of locomotory disabilities of
the lower limbs as the eligibility criteria for consideration of a
candidate for admission to M.B.B.S. course, reserved for disabled
category.
12. It
was submitted on behalf of learned counsel for the M.C.I. that Orissa
High Court while pronouncing its common judgment in the case of D.S.
Rashmi Ranjan (supra)
upheld the decision of the M.C.I. to consider only those candidates
for admission to medical courses having locomotory disability of
lower limbs upto 70%. The Orissa High Court held that in view
of the definition of `persons with disability’ u/Sec.2(t) of the
Disabilities Act, read with Sec.39 of the said Act, all persons with
40% and above disabilities till the limit of 70% would be eligible
for admission to medicine courses. It is stated that M.C.I. for
authoritative pronouncement on the issue approached the Hon’ble
Supreme Court in S.L.P.(C)
Nos.7952-53/2005 in M.C.I. Vs. D.S. Rashmi Ranjan
and others.
In the said case, the Supreme Court passed interim order on
25.04.2005 and stayed the operation of the judgment of the Orissa
High Court. From the record, it appears that the order of stay was
later on clarified by the Supreme Court on 08.08.2006, wherein the
Supreme Court ordered that:
“The
order dated 25th April, 2005, staying the operation of the impugned
order dated 2nd February, 2005, in C.W.P. Nos. 7877 and 7878 of 2004
does not prevent the admission of physically handicapped candidates
having locomotive disability of lower limb between fifty and seventy
percent.”
13. It
appears that the M.C.I., originally noticed a judgment of Delhi High
Court in C.W.P. No.6496/2000 – Rekha Yagi Vs. Vice
Chancellor, University of Delhi and others, wherein it was
held by Delhi High Court that Sec.39 of the Disabilities Act has no
application for reservation of seats, and that it refers to
reservation of posts as the Section falls under the Chapter
`Employment’. The relevant portion of the judgment dated 17.08.2001
is as under:
“Looking
at from the above angles, the inevitable conclusion is that Section
39 has no application for reservation of seats. For that purpose the
word “post” has to be profitably used in place of “seats”.
It falls in line with the legislative intent at amply reflected in
Section 32 and Section 33. In other words, in government educational
institution or aided institutions three per cent of the posts can be
reserved for persons with disabilities. The procedural aspects for
employment as applicable to other provisions of Chapter VI have
perforce application to Section 39. The reference is accordingly
disposed of.”
14. In
the meeting of the Executive Meeting of the M.C.I., the question fell
for consideration as to whether the guidelines of M.C.I. providing
for locomotory disability of lower limbs between 40-60% as existing
at that time in 2003 applies to admission in M.B.B.S. only, or it
also applies to P.G. Medicine courses. The Executive Committee
considered the earlier guidelines dated 05.07.2001, whereby it was
observed that the visually handicapped and hearing disabled should be
deleted from the said category, and they should be considered invalid
for admission in the M.B.B.S. course. Amongst the locomotory
disabled, the upper limb should be functional and normal, as it is
required to elicit sign during clinical examination, and finer
movements are desired for conduct of surgical procedure. Again, the
feeling and sensation are important for clinical diagnosis and the
treatment, and locomotory disabled involving upper limb should be
considered not eligible for admission to the professional medical
course. The locomotory disabled involving the lower limb was held to
be permissible, but it should be within the guidelines of 40-60%. On
that basis, taking into account the aforesaid, the Committee decided
to withdraw the communication dated 29.04.2003, and the Committee
reiterated that only persons with locomotory disability of lower limb
between 50-70% should be allowed the benefit of reservation under the
Disabilities Act for admission in the medical courses.
15. Sec.39
of the Disabilities Act and other relevant provisions of the said Act
fell for consideration before a Division Bench of this Court in Palak
Kailashchandra Jain Vs. Union of India and others reported
in 2001(3) GLH 299. In the said case, the Court considered the
question whether Sec.39 of the Act provides for reservation of seats.
We have noticed that the Delhi High Court in its judgment dated
17.08.2001 in C.W.P. No.6496/2000 held that Sec.39 has no application
for the reservation of the seats. The procedural aspect for
employment as applicable to other provisions of Chapter VI have
perforce application to Sec.39.
In
the case of Palak Kailashchandra Jain (supra),
Division Bench of this High Court having noticed Sec.39 of the Act
and other provisions, held that Sec.39 though falls in Chapter VI,
the head `employment’, does not mean that Sec.39 is concerned with
employment. The said provision, i.e. Sec.39, is a mandate to
government educational institutions and to the other educational
institutions receiving aid from the government including the
government medical colleges and government aided medical colleges to
reserve 3% of the seats for students with disabilities.
16. Sec.39
of the Disabilities Act reads as under:-
“39.
Time-limit for the notification of vacancies.-
(1) Vacancies,
required to be notified to the local Special Employment Exchange,
shall be notified at least thirty days before the date on which
applicants will be interviewed or tested where interviews or tests
are held, or the date on which vacancies are intended to be filled,
if no interviews or tests are held.
(2)
Vacancies required to be
notified to the Special Employment Exchange notified under sub-rule
(1) of Rule 37 shall be notified at least three weeks before the date
on which applicants will be interviewed or tested where interviews or
tests are held, or the date on which vacancies are intended to be
filled, if no interviews or tests are held.
(3) An
employer shall furnish to the concerned Special Employment Exchange,
the results of selection within fifteen days from the date of
selection.”
Persons
with disability has been defined u/Sec.2(t), the meaning of which
is as follows:-
“2(t)
“person with disability” means a condition of arrested or
incomplete development of mind of a person which is specially
characterized by sub-normality of intelligence.
What
is disability, meaning of which has been shown in Sec.2(i), as
defined and quoted hereunder:-
“2(i)
“disability” means –
(i)
blindness;
(ii) low
vision;
(iii)
leprosy-cured;
(iv) hearing
impairment;
(v)
locomotory disability;
(vi) mental
retardation;
(viii)
mental illness”
From
the aforesaid provisions of the Disabilities Act, it will be evident
that those who have suffered from not less than 40% of any disability
as certified by Medical Authority, fall within the meaning of “person
with disability” for the purpose of claiming reservation against
3% seats u/Sec.39.
17. Sec.33
though deals with reservation of posts, it subdivides 3% quota in 3
sub-quotas between (i) blindness or low vision; (ii) hearing
impairment; and (iii) locomotory disability or cerebral palsy.
Sec.33 make no reservation for persons with disabilities such as
leprosy-cured, mental retardation, mental illness.
18. The
question arises that if Sec.39 provides reservation of not less than
3% of seats for “persons with disabilities”, and “persons
with disabilities” means those suffering from not less than 40%
of any disability,
can the M.C.I. regulate the admission by making further
classification between the persons with limited disabilities, one
having lower locomotory disabilities against the other having upper
locomotory disabilities for the purposes of admission in postgraduate
course?
19. Learned
counsel for the M.C.I. would refer to sub-sections (j), (l), (m) of
Sec.33 of the Indian Medical Council Act, whereunder M.C.I. has been
empowered to make regulations for courses and period of study and of
practical training, conduct of professional examinations,
qualification examinations and the conditions of admission to such
examinations, and any other matter for which provisions have been
made under the Act. The Orissa High Court in the case of D.S.
Rashmi Ranjan (supra)
held as follows:-
“13.
However, the decision of the Medical Council with regard to the upper
degree of disability with which a person would be able to undertake
the M.B.B.S. course and the type of disability or suffering with
which a student can undertake the M.B.B.S. Course cannot be
questioned since the Medical Council is competent to lay down the
standard of a candidate required for entry to medical course. Lying
down the standard of a candidate for entry to medical course will
take within its sweep the power to lay down the standard of physical
ability with which a student can undertake the course. The opinion
of the Medical Council that a person with locomotory disability of
the upper limb or with any other disability as in 2(i) of the Act
except locomotory disability of the lower limbs would not be eligible
to take up the medical course since a medical practitioner is
required to elicit sign during the clinical examination and finer
movements are desired for conduct of surgical procedure so also the
feeling and sensation are important for a clinical diagnosis and
treatment, are reasonable considerations to determine as to whether a
person can undertake the course. Determination of upper limit of
disability at 70% has not been challenged int he writ applications.
The decision of the Medical Council that person with locomotory
disability of the lower limbs only is eligible to be considered for
admission cannot otherwise be challenged since it is for the Medical
Council to see as to whether a person
with some disability can effectively undertake the course and
ultimately can function successfully as a medical practitioner. The
observations and decisions of the Medical Council that feeling and
sensation are important for a clinical diagnosis and a medical
practitioner or a student of medical course is to elicit sign during
clinical examination and finer movements are desired for conduct of
surgical procedure and, as
such, persons with maximum
of 70% of locomotory disability of the lower limb only and with no
other disability are eligible for admission to M.B.B.S. course
therefore cannot be faulted.”
However,
the aforesaid judgment has been stayed by the Hon’ble Supreme Court
in M.C.I. Vs. D.S. Rasranjan
by its order dated
25.04.2005 in S.L.P.(C) No.7952-7953/2005. Subsequently, the Supreme
Court passed the following order on 24.08.2006:-
“After
some arguments, we have asked Mr. Maninder Singh, learned counsel for
the Medical Council of India, as to why candidates suffering from
locomotive disability of lower limb of less than fifty per cent but
more than forty per cent should not get admission in the medical
courses in case sufficient number of candidates for three per cent
quota seats with disability of fifty to seventy per cent are not
available. Mr. Maninder Singh prays for a short adjournment to take
instructions.”
20. It
is informed that in view of the aforesaid observation made by the
Supreme Court, now a provision has been made by amending the
Regulations 2009, to admit disabled persons between 40-60% with lower
limb locomotory disability, if no person is available with lower limb
locomotory disability between 50-60%.
21. Similar
question fell for consideration before the Gauhati High Court in Smt.
Anju Talukdar and Another Vs. State of Assam and Others reported
in AIR 2009 Gauhati 54.
In the said case, the Court noticed a similar educational notice No.
DME/09/2008/7791 dated 12.05.1998 issued by the 2nd respondent of the
said case, wherein the quota was restricted
for physically handicapped candidates only to persons with locomotory
disabilities of lower limbs having disabilities between 50-70%, and
renders the admission of the candidates subject to medical fitness.
In the said case, it was stated that reservation provision had been
adopted on the basis of the
guidelines of the M.C.I. for filling up reserved seats for persons
having locomotory disabilities for admission in medicine courses,
pursuant to M.C.I. letter No.MCI-34(1) 2003-MED/117773 dated
14.07.2003, which inter alia prescribed for reservation for persons
with locomotory disabilities of lower limb between 50-70%, who only
be allowed the benefit of reservation under the Disabilities Act for
admission to all Medicine courses.
In
the aforesaid case of Smt. Anju Talukdar,
claim was made by a person who had visual impairment or hearing
impairment seeking admission to medical courses in the country. The
Gauhati High Court on hearing the parties, observed that when
language of Sec.39 of the Disabilities Act being clear and
categorical that the benefit of reservation should be expanded to all
categories of persons with disabilities, which by definition under
the Act recognizes 7 categories of disabilities denying the benefit,
also appears to us to be wholly illegal, in absence of any legal
tenable justification, which justification if exists should have been
placed.
22. The
relevant provision of Sec.33 of the Indian Medical Council Act, 1956,
as referred to by learned counsel for the M.C.I., do not empower the
M.C.I. to limit 3% reservation of seats as provided u/Sec.39 within a
limited disabled persons. It is true that the M.C.I. has power to
frame regulations laying down the minimum criteria for admission,
qualification, etc. for admission to M.B.B.S. or postgraduate medical
courses. It can also lay
down guidelines of fitness for such guidelines, but the question
arises that if under the Central Act, viz. the Disabilities Act,
“person with disability” as defined is given a meaning of
`persons suffering from not less than 40% of any disability’ as
certified by Medical Authority, the M.C.I.
has any authority to frame a regulation, limiting the same only to
persons having locomotory disabilities as done by the Amending Act,
2009 notified on 25.03.2009?
23. It
will be evident that the Notification dated 25.03.2009 has been
issued u/Sec.33 of the Indian Medical Council Act, 1956, which
empowers the M.C.I. to make regulations. We have noticed that
learned counsel for the M.C.I. could not lay hand on any particular
clause of Sec.33, under which the said provision has been made. A
general statement was made that it has been framed under clause (n)
of Sec.33, which relates to any matter for which under the Indian
Medical Council Act 1956 provisions may be made by regulations.
24. The
Disabilities Act was enacted pursuant to a meeting to launch the
Asian and Pacific Decade of Disabled Persons 1993-2002 held at
Beijing on 1st to 5th December, 1992 wherein they adopted a
Proclamation on the Full Participation and Equality of People with
Disabilities in the Asian and the Pacific Region. It came into
effect from 01.01.1996. U/Sec.72 of Disabilities Act, it is made
clear that the provisions of the said Act or the Rules made
thereafter is in addition to, and not in derogation of any other law
for the time being in force or any Rules or Order or any Instruction
issued thereunder enacted or issued for the benefit of persons with
disabilities. Such provisions have been made under the Central Act,
viz. the Disabilities Act, defining the persons with disabilities
means a person suffering not less than 40% of any disability as
certified by any Medical Authority. Any decision or regulation
framed by the M.C.I. contrary to Sec.2(t) shall be ultravires the
said provisions. It is true
that the M.C.I. has jurisdiction to frame regulations for admission
in M.B.B.S. or postgraduate medical course, but no provision can be
made against any Central Act, including Sec.2(t) of the Disabilities
Act wherein `person with disability’ has been defined. The
Postgraduate Medical Education (Amendment) Regulation 2009, issued by
Notification dated 25.03.2009, adding sub-clause(1)(a) and proviso to
clause (2)(iv) to Sec.9 therein being contrary to and amounting to
altering definition of `person with disability’ as defined u/Sec.2(t)
of the Disabilities Act, we hold the Postgraduate Medical Education
(Amendment) Regulations, 2009 Part-I so far as it relates to addition
of sub-clause (1)(a) and proviso to clause (2)(iv) to Sec.9 relating
to locomotory disability as ultravires.
25. We
have noticed that the aforesaid issue has not been decided by the
Orissa High Court or Gauhati High Court in its earlier judgment nor
by the Delhi High Court of which reference has been noticed in the
said case. It has not been brought to our notice that the validity
of the Postgraduate Medical Education (Amendment) Regulations, 2009
is under consideration before the Supreme Court. It is not in
dispute that the petitioner has become disabled much prior to his
admission in M.B.B.S. Course. He was admitted in the M.B.B.S. Course
and has already completed such Course. He being fit for admission
in the M.B.B.S. Course with both upper and lower locomotory
disability, it cannot be stated that he is not fit for admission to
Postgraduate Medical Course.
26. Further,
if a person having both upper and lower locomotory competes in the
test and falls within the merit category in absence of any
prohibition under the Regulations, such person is fit for admission
in the Postgraduate Course. If such person can be admitted against
unreserved seat, i.e. merit category, Medical Council of India cannot
exclude persons with upper limb locomotory disability from admission
in the Postgraduate Course on the ground that such person cannot
elicit sign during clinical examination.
It
is not the case of the M.C.I. or the respondents that the petitioner
as a medical practitioner having M.B.B.S. degree is invalidated as he
cannot elicit sign during clinical examination or has no sensation in
the upper limb for clinical diagnosis and treatment. In absence of
any such finding by any of the authorities, he having been allowed to
compete for the M.B.B.S. Course and having already completed the said
Course, for the purpose of admission in the Postgraduate Course he
cannot be held to be ineligible.
27. In
the facts and circumstances, while giving the aforesaid declaration,
we direct the respondents to allow the petitioner to continue with
his studies, as taken pursuant to the interim order of this Court,
particularly when he was earlier allowed to study the M.B.B.S. Course
and has passed out successfully and completed the internship course.
The writ petition is allowed, but there shall be no order as to
costs.
(S.J.
MUKHOPADHAYA, C.J.)
(ANANT
S. DAVE, J.)
[sn
devu] pps
After
the judgement was delivered, counsel for the respondent no.3 prayed
for stay of the judgment in question. But, in view of the grounds
shown in the judgment, prayer for stay is rejected.
(S.J.
MUKHOPADHAYA, C.J.)
(ANANT
S. DAVE, J.)
[sn
devu] pps
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