JUDGMENT
R.L. Anand, J.
1. Petitioner Manharan Singh Gill has filed the present writ petition under Articles 226/227 of the Constitution of India for issuance of a
writ, order or direction commanding the respondents to admit him to MBBS Course in the reserve category of disabled persons on account of hearing impairment for which he had applied and was called for counselling but not admitted despite being fully eligible in every respect, on account of arbitrary, discriminatory and illegal action of the respondents at the time of counselling.
2. The case set up by the petitioner is that he appeared in the Punjab Medical Entrance Test-2000 (for short PMET-2000). He is a disabled person having hearing impairment and as such had applied for admission in the reserve category of disabled person. He provided all the requisite certificates in this regard and was considered in the said category. However, arbitrarily and discriminatorily his claim has been rejected on undisclosed grounds,
3. A notification was issued by the Government of Punjab on 20.4.2000 vide which said lest was taken. The lest was to be conducted by the respondent No. 2 i.e. Baba Farid University of Health Sciences. Faridkot. This University authorised Guru Nanak Dev University, Amritsar to conduct the test. Resultantly, respondent No. 2 and Guru Nanak Dev University issued the prospectus for admission. According to the petitioner, he was eligible in all respects under the prospectus and so he applied for appearing in the said test in the reserve category of disabled persons. The condition with regard to eligibility is regulated by the prospectus issued in this regard. The manner of applying has also been given in the prospectus. The complete application in all respects was supposed to reach by 18.5.2000. The mode of selection was to be regulated by the prospectus. Interview was to be held at respondent No. 2. The committee consisting of Principal. GGS Govt. Medical College, Faridkot, Principals of all Medical Colleges, representative of Vice- Chancellor, Baba Farid University and Director, Social Welfare or his representative was to hold the interviews/counselling. According to the prospectus, 3% seats were reserved for disabled person which was further sub- categorised 1% for blindness or low vision; 1% for hearing impairment and 1% for orthopaedically handicap. If candidate of one category is not available, then that seat can go to other sub-category. In order to determine the disability it is provided in the prospectus that minimum loss of hearing capacity should be 40% according to the criteria laid down in the standard of ESI Corporation Act of India. For our purposes, Note 1(6) of the prospectus is relevant which can be reproduced as follows :-
“Note 6 ;
a) In order to decide the eligibility of a candidate for considering him/her for admission against category (vi) above, minimum loss of hearing capacity should be 40% according to the criteria laid down in the standard of ESI Corporation Act of India.
b) The candidate should produce a certificate from a Professor/Associate Prof./Assistant
Prof./Eye/ENT/ Orthopaedic specialist as the case may be regarding percentage of loss due to the disability, without such certificate, the candidate will not be considered for the seats reserved for this category.
c) the final decision with regard lo the extent of handicap will be taken by the Board consisting of three Heads of Eye/ENT/Orthopaedics departments of Govt. Medical Colleges viz Amritsar, Patiala and Faridkot of handicap under sub-categories of a, b and c respectively.”
4. It is further provided that the Board shall issue a certificate in the following form :-
“i. Name of the candidate
ii. Father’s Name
iii. Permanent Address
iv. Percentage of disability
v. Whether the candidates is otherwise able to carry on the studies and will perform the duties of a doctor satisfactorily, and
vi. Name of the disease causing the handicap and whether it is progressive or non-progressive.”
5. According to the petitioner, he obtained the requisite certificate from Dr. Tarsem Lal Parmar, who is Professor and Head of ENT Department, GGS Medical College. Faridkot and also Principal of the said College. In the certificate it was clearly mentioned that the petitioner suffers from a loss of hearing capacity of 40% or more as is evident from Annexure P2, the certificate dated 10.5.2000. Petitioner’s right ear has congenital malformation and there is atresis of the ext. & canal lobule is not developed. Right ear has approximately 50 db hearing loss. Left ear has about 40-45 db hearing loss. On the basis of certificate Annexure P2 the petitioner was allowed to appear in the Entrance Test and was considered in the reserve category. The petitioner got 129 marks in the examination. In the category of hearing impairment only 2 candidates appeared. One was Deepak Gupta and other was the petitioner. The petitioner appeared for counselling on 1.8.2000. He was kept for some time and was examined in the hall where the counselling was taking place. Ultimately it was said that he was found not eligible. The other candidate Deepak Gupta did not appear for counselling. Thus the petitioner was the only candidate and he was found ineligible for the reasons known to the respondents authorities. The father of the petitioner was also present at the time of interview. He met the members of the committee in order to ascertain the reason why the petitioner was not found eligible, but no reason was given to him. So much so, the petitioner gave representation addressed to the Chairman of the Interview Committee in the form of an appeal. The Chairman refused to receive the copy of appeal. However, it was received by the Vice-Chancellor. The father of the petitioner clearly alleged that the petitioner was suffering from disability to the extent of 40% and above and it was so certified even by Dr. Parmar who was one of the members of the Interview Committee and was its Chairman.
The reason verbally told to the father of the petitioner was that the disability suffered by the petitioner is treatable. This reason is totally misconceived as the petitioner is suffering from the disease since his birth. The father of the petitioner is a doctor and the petitioner is only son. In the capacity of doctor he took every care to ensure that the defect of his son is cured but the petitioner continued suffering disability. In short, the case set up by the petitioner is that his disability was 40% as certified vide Annexure P2 and, therefore, he could not be rejected by the selection committee. Also, it is alleged by the petitioner that he showed for examination to the Head of ENT Department in PGI, Chandigarh, where the disability of the petitioner was assessed at 49%. Still he appeared before the Civil Surgeon, who also certified the disability of the petitioner more than 40%. Thus the action of the respondents in giving the seat to respondent No. 3 Varinder Pal Singh Thakur is arbitrary and liable to be quashed.
6. Notice of the writ petition was given to the respondents. Earlier written statement was filed under the signatures of Dr. T.L. Parmar, Chairman, Selection Committee and Principal, Guru Gobind Singh Medical College, Faridkot, on behalf of respondent No. 1. His stand was that final decision with regard to the extent of disability was to be taken by the board consisting of Heads of Eye/ENT/Orthopaedics Department of Govt. Medical Colleges, Amritsar, Patiala and Faridkot. The board examined the petitioner for hearing impairment and found that he was not fit for reserve category. The decision of the board has the overriding effect on the findings of the single doctor and as per the provisions of the prospectus the recommendations of the board are final. Moreover, the defect of the petitioner is treatable and is not of permanent nature. The petitioner submitted representation to the selection committee which was considered and rejected. Regarding the treatment the disease is quite treatable and there are many centres in the States as well as in the country where this defect can be surgically corrected giving good hearing without any complications. It was also pleaded by the respondent No. 1 that the reliability about the test conducted in the hall, the percentage of loss will be 10% less than the loss observed by test in the sound proof room as the noise in the hall amounts to 10%. Hence in the sound proof room hearing will be more and impairment will be less. As per the definition of “handicap”, it means permanent disability and if the same is treatable then it is not disability. Since no candidates belonging to G-l and G-2 category were available, therefore, these seats were carried to sub- category G-3 and the seat has been rightly granted to respondent No. 3.
7. Separate written statement was filed by respondent No. 2 Baba Farid University of Health Sciences, Faridkot through its Registrar and its stand was common with that of respondent No. 1. Also, it was observed that the complaint of Dr. H.S. Gill (father of the petitioner) was considered and deliberated upon by the
committee which was of the unanimous opinion that the candidate Manharan Singh Gill possesses a disability of less than 40% on the day of interview i.e. 1.8.2000 and-, therefore, is ineligible for consideration under the category. The High Court will not substitute its opinion for the opinion of experts when the petitioner was aware that as per the terms of the prospectus he was to appear before the board.
8. Respondent No. 3 also filed separate written statement and his stolid goes with the stand of respondents No. 1 and 2.
9. A re-joinder was filed by the petitioner in which he reiterated the allegations of the writ petition. He even went to the extent by saying that let he may be examined by any expert committee in order to formulate about his disability.
10. An additional affidavit dated 10.11.2000 was also filed by Dr. T.L. Parmar, who deposed that he examined the petitioner on 10.5.2000 with the assistance of Mrs. Paramjit Kaur, Speech Therapist/Audiologist in the Medical College at Faridkot. While taking the test the responses of the petitioner were inconsistent as a result of which there had to be a re-test of the petitioner. The petitioner was accompanied by his father and two more professors. When the test was conducted by him he was told that the certificate was required for the purpose of applying for admission to MBBS Course. He at that time was not positive about the fact whether the disability was upto 40% or not but issued the certificate of 40% disability having at the back of his mind and ultimately the extent of disability would again be determined by the Medical Board after again examining the petitioner before finalising the admission and Dr. Parmar was aware that if the certificate was not issued the petitioner would be excluded from consideration totally and, therefore, did not want to harm his interest in any manner at the outset. The petitioner was ultimately examined by the board which comprised of the deponent (Dr. Parmar, Professor and Head of ENT Department, Medical College, Faridkot), the Professor and Head of ENT Department, Medical College, Patiala and Professor and head of ENT Department, Medical College, Amritsar. In the presence of these three professors tests were again conducted by Mrs. Paramjit Kaur and it was recorded in the register that the petitioner’s responses were inconsistent and he could be tested again. It was also recorded that the petitioner is likely to be malinger, meaning there by that the petitioner was not having the disease which he was professing to have but was merely pretending. If the responses of the petitioner are taken at face value, they are less than 40%. It was seen at the end of the test that in his left ear his conversation was within normal limits and in his right ear also the disability was treatable/correctable which would provide almost normal hearing and, therefore, was not a permanent disability. It was concluded that the disability was less than 40% and the petitioner did not quality for category G-2 (hearing impairment) and for this reason he was not considered. The examination of
the petitioner on 10.2.2000 was not as critical as it was done by the medical board on the date of interview. Thus, Dr. Parmar has tried to explain through this affidavit the document Annexure P2 on which main reliance has been placed by the learned counsel for the petitioner.
11. I have heard Mr. R.S. Randhawa, Advocate for the petitioner, Ms. Charu Tuli, DAG, Punjab, Mr. P.S. Patwalia, Advocate for respondent No. 2, Mr. Deepak Sibal and Mr. V.S. Rana, Advocates for respondent No. 3 and with their assistance have gone through the records of the case.
12. Annexure P2 is the basic document on which much reliance has been placed by the learned counsel for the petitioner, who submitted that Dr. Parmar on 10.5.2000 certified that the petitioner suffers from a loss of hearing capacity of 40% or more according to the criteria laid down in the Punjab Govt. notification. Dr. Parmar is a Professor and Head of ENT Department in GGS Medical Hospital, Faridkot. He was also the Chairman of the Selection Committee. With the issuance of certificate Annexure P2, it is not open to the Selection Committee to say that the disability of the petitioner is less than 40%. The decision is arbitrary. According to Mr. Randhawa, the opinion of the Board is questionable when it has examined casually the petitioner in the hall instead of in a sound proof laboratory. There is a scope of mistake on the part of the Hoard and the Board has no valid basis before it to ignore the findings of the Head of the Selection Committee as contained in Annexure P2. Not only this, on 22.7.1999, the petitioner was examined by 4 doctors including Civil Surgeon of Bathinda, who issued a certificate that the disability of the petitioner is40%. That Board formulated the opinion as follows :-
“…He is permanent disabled from: Right ear has congenital malformation. There is atiresis of the Ext. and canal lobule is not developed. Rt./E has app. 50 db hearing loss. Left ear has about 40-45 db hearing loss. Disability is 40% and his disability is not less than 40% as per definition in the persons with disability (equal) definite opportunities protection of Right and Full particulars Act, 1995.”
13. The learned counsel for the petitioner also invited my attention to Annexure P6, a certificate issued by P.G.I., Chandigarh, wherein the hearing impairment/disability of the petitioner was calculated and it was found to be 40% in the right ear and 59% in the left ear and binaural is 49%. This certificate has been issued by none else but a renowned doctor S.B.S. Mann, who was the Professor and Head of ENT Department, PGI, Chandigarh and presently the Director, Govt. Medical College and Hospital, Sector 32, Chandigarh. From all these documents Mr. Randhawa wanted to convince that the opinion formulated by the Board on 1.8.2000 is arbitrary, without any basis and foundations and, in fact. Dr. Parmar wanted to detract from his earlier opinion in order of mar the chances of the petitioner and possibility cannot be ruled out that the
other doctors simply toed the line of action of Dr. Par-mar in rejecting the admission of the petitioner. Mr. Randhawa, during the course of his submissions, went to the extent by saying that let this Court may order that the petitioner would appear before any Board of Doctors, who are specialist in the branch, to formulate an independent opinion about the disability of the petitioner. Mr. Randhawa also stated that let the High Court may again refer the petitioner to the same doctors who disqualified him on 1.8.2000.
14. On the contrary, learned counsel appearing on behalf of the respondents submitted that the arguments of Mr. Randhawa are emotional and carry less legal weight because it is the case of the petitioner itself that the prospectus is a guiding document and if the Board of Doctors on examination has declared the disability of the petitioner less than 40%, the opinion of the Board is to prevail and cannot be questioned unless mala fides are discernible. The petitioner has not alleged mala fides. The opinion of the Board is final. The opinion of Dr. Parmar, Annexure P2, was The opinion of an individual. That certificate only authorises the petitioner to appear in the examination but the opinion earlier formulated by Dr. Parmar is not final and conclusive. It is subject to scrutiny by the Board which can formulate an independent opinion and any opinion formulated by any doctor including Dr. Par-mar has to give way to the opinion of the Board.
15. I have considered the rival contentions of the parties and am of the opinion that this writ petition deserve to be dismissed. It is the case of the petitioner itself that the admission to the Course is to be regulated by the prospectus and mode of selection is also required to be regulated by the prospectus and rightly too. For me, prospectus is a magna karta. The rights of the parties are to be governed and adjudicated in the light of the prospectus itself. Note 6 is important for us. Sub-clause (c) of the said note is further of significance, which lays down that the final decision with regard to the extent of handicap will be taken by the Board consisting of three Heads of Eye/ENT/Orthopaedics departments of Government Medical Colleges viz. Amritsar, Patiala and Faridkot, Thus, opinion of the Board is to prevail which is final and conclusive authority. Dr. Parmar has rightly and cogently explained the certificate Annexure P2. He has also explained the circumstances under which it was issued. The additional affidavit of Dr. Parmar is self-explanatory and deserves to be accepted. At the most it is an opinion of Dr. Parmar contained in Annexure P2. This opinion can be rectified on the basis of more material. One doctor can become saner with the assistance rendered by other doctors. It does not mean that moment Annexure P2 is issued it is issued for eternity. The certificates of the P.G.I., Chandigarh or the Civil Surgeon have no binding force in the light of sub- clause (c) of Note 6. The prospectus further provides that this Board shall issue a certificate certifying about the percentage of disability. The petitioner has appeared in the lest after accepting the conditions of the prospectus
and if the Board has certified that the disability of the petitioner was less than 40%, this Court is not in a position to sit over the decision of the experts. Dr. Gill, father of the petitioner, made a complaint, which was treated as Complaint No. 1 by the Board. Though the contents of the complaint were deliberated upon by the committee which was of the unanimous opinion that the petitioner possessed disability less than 40% on the date of the interview and, therefore, was ineligible for consideration. During the course of proceedings, I have examined the record vide which the petitioner was examined on 1.8.2000. So much so Dr. Paramjit Kaur conducted various investigations. Those investigations are countersigned by the three doctors. The findings with regard to medical examination of the petitioner and “Responses are inconsistent, may be tested again. The candidate likely to be malinger”. Further, the Board in Column No. 4 of percentage of disability stated as under :-
“Hearing impairment less than 40%.
The pure tone Audiometry performed at three different centres PGI, YN Mehra and Faridkot MC does not tally with each other. The lest being subjective and its value do not go at par with conventional level. (Conversation verbal)
He is having congenital Atresia and microtia Rt. Ear which is treatable and will provide almost normal hearing (Not a permanent hearing loss). Lt. Ear, conversation within normal limits. The does not qualify Category G-2 (Hearing impairment).” Thereafter all the three Heads of the Department joined heads and finally rejected the eligibility of the petitioner.
16. Faced with this difficulty, the learned counsel for the petitioner also drew my attention to the opinion of the doctor of AIIMS who examined the petitioner on 20.9.2000 and submitted that the disability of the petitioner has been assessed more than 40%. I do apprehend the anxiety of the learned counsel for the petitioner and the father of the petitioner, but for me it is difficult to go beyond the prospectus which is the guiding document. To supersede the opinion of the Board, which examined the petitioner on 1.8.2000, even in the hall, will not be justified on the part of this Court. The findings cannot be upset. In case the petitioner wants to dispute the finding, his remedy lies somewhere else and not invoking the powers under Articles 226 of the Constitution of India. It is undisputed proposition of law that disputed question of fact cannot be adjudicated or determined by the High Court under Article 226 of the Constitution of India.
In this view of the matter. I dismiss this writ petition leaving the parties to bear their own costs,
17. Petition dismissed.