{"id":145862,"date":"2010-11-24T00:00:00","date_gmt":"2010-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-deval-vs-union-on-24-november-2010"},"modified":"2017-07-30T22:15:48","modified_gmt":"2017-07-30T16:45:48","slug":"dr-deval-vs-union-on-24-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-deval-vs-union-on-24-november-2010","title":{"rendered":"Dr.Deval vs Union on 24 November, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dr.Deval vs Union on 24 November, 2010<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/6412\/2010\t 1\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6412 of 2010\n \n\n \n\n\n \n\n \n \nFor\nApproval and Signature: \n\n \n\n \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA \n\n \n\n \nHONOURABLE\nMR.JUSTICE ANANT S. DAVE \n\n \n\n \n \n=================================================\n \n\n \n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n\n\n \n\n=================================================\n \n\nDR.DEVAL\nR MEHTA - Petitioner(s)\n \n\nVersus\n \n\nUNION\nOF INDIA & 5 - Respondent(s)\n \n\n================================================= \nAppearance\n: \nMR\nSN THAKKAR for Petitioner(s) : 1, \nMR PS CHAMPANERI for\nRespondent(s) : 1, \nMR MITUL K SHELAT for Respondent(s) : 3, \nMRS.\nKRINA CALLA AGP for Respondent(s) : 4,5 \nMR HRIDAY BUCH for\nRespondent(s) : 6, \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE ANANT S. DAVE\n\t\t\n\t\n\n \n\nDate\n:24\/11\/2010 \n\n \n\nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)<\/p>\n
\tThe
\nwrit petition was preferred by petitioner to set aside the decision
\nof the 6th respondent refusing admission to the petitioner for the
\npost-graduate medical course under the physically handicapped
\ncategory.  Further prayer was made to declare Rule 5.0 of the Rules
\nand Regulations for Admissions in Post Graduate Degree and Diploma
\nMedical Courses as ultravires the provisions of the Persons with
\nDisabilities (Equal Opportunities, Protection of Rights and Full
\nParticipation) Act, 1995 (hereinafter referred to as `the
\nDisabilities Act’) for short) to the extent the same mandate that the
\nupper limbs shall be normal and that the locomotory disability in the
\nlower limbs must be between 50% to 70%.  By a petition for amendment,
\nthe petitioner has also challenged the Notification dated 25.03.2009
\nintroducing amendment in clause 9(1)(a) to the Postgraduate Medical
\nEducation Regulations, 2000.\n<\/p>\n
2.\tThe
\npetitioner was born on 02.12.1984, had a critical fall on 11.06.1985
\nand suffered a head injury, which was diagnosed as right sided
\nhemiparesis at level C4-C5 of the vertebrae.  The effect was muscular
\nweakness of both the right upper limb and the right lower limb
\nresulting in decreased grip and wasting of muscles on the right side.
\n The petitioner on diagnosis has been declared as physically disabled
\nhaving 50% permanent physical impairment.\n<\/p>\n
3.\tAccording
\nto the petitioner, after passing XII Std. Board Examination in
\nScience Stream from ICSE Board, he was granted admission on
\n28.12.2002 to the M.B.B.S. course with the Surat Municipal
\nInstitution of Medical Education and Research (SMIMER) in the
\nphysically handicapped category.  He cleared his M.B.B.S. along with
\none year compulsory rotatory internship in March 2009.  On
\n20.05.2009, the petitioner was given the general registration No.
\nG-42048 by the Gujarat Medical Council and was conferred the M.B.B.S.
\ndegree by Veer Narmad South Gujarat University on 26.02.2010.  The
\nrenewed disability certificate was issued on 18.11.2009 certifying
\nthat the petitioner is physically disabled and having 50% permanent
\nphysical impairment.  The petitioner appeared in the examination on
\n29.01.2010 conducted by P.G. Medical Education Committee, Saurashtra
\nUniversity, seeking admission to P.G. Medical course and had
\nqualified in the open merit\/physically handicapped category.
\n07.04.2010 was the date fixed for counseling by the Saurashtra
\nUniversity and three seats were reserved for physically handicapped
\ncategory.  There were only three candidates, who had sought admission
\nin the physically handicapped category and the petitioner, being the
\nlone outsider having done graduation from another University, was
\nplaced at Sr.No.3 in the said list of physically handicapped
\ncandidates.  The first candidate refused to opt for taking any seat
\nand the second physically handicapped category  candidate opted for
\nMDTB and Chest course and therefore the petitioner had the option of
\nselection from any of the options reserved for the remaining two
\nseats of the physically handicapped category.\n<\/p>\n
4.\tAccording
\nto petitioner the P.G. Medical Admission Committee after going
\nthrough disability certificate of the petitioner concluded that the
\npetitioner having 50% disability of upper limb is not eligible for
\nadmission against reserved seats of physically handicapped persons in
\nview of guidelines of the Medical Council of India (hereinafter
\nreferred to as `the M.C.I.’ for short).\n<\/p>\n
5.\tThe
\npetitioner appealed to the Vice Chancellor of the 6th respondent
\nUniversity and also lodged his grievance with the State Commissioner
\nfor Disabled Persons on 09.04.2010.  After hearing the parties on
\n23.04.2010, the State Commissioner requested the 6th respondent
\nUniversity to consider the petitioner’s case sympathetically, but the
\n6th respondent University after seeking guidelines from the 3rd
\nrespondent M.C.I. and having not taken any decision, the petitioner
\nmoved before this Hon’ble Court as second counseling was to start to
\nfill the reserved seat for handicapped out of open\/general merit
\ncategory.\n<\/p>\n
6.\tIn
\nview of interim order passed by this Court, the petitioner has been
\nadmitted in the postgraduate course of Medical Science against the
\nreserved seat for disabled persons, he having come within the zone of
\nconsideration and having competed in the competitive examination.
\nSuch admission has been taken subject to the decision of the case.\n<\/p>\n
7.\tIt
\nappears that M.C.I. with approval of the Central Government published
\n`The Post Graduate Medical Education (Amendment) Regulations 2009
\n(hereinafter referred to as `2009 Guidelines’, for short).  By the
\nsaid amendment Sub-clause (1)(a) has been added in clause 9 under the
\nheading `Selection of Postgraduate Students’.  A proviso has been
\nadded after the sentence `General Category Candidates’ in the fourth
\nline of the first proviso to clause 9(2)(iv), as quoted hereunder:\n<\/p>\n
“9(1)(a).\n<\/p>\n
3% seats of the annual sanctioned intake capacity shall be filled up
\nby candidates with locomotory disability of lower limbs between 50%
\nto 70%.”\n<\/p>\n
“45%
\nfor persons with locomotory disability of lower limbs in the same
\nmanner as stipulated in Clause 9(1)(a) above.”\n<\/p>\n
8.\tThe
\npetitioner has challenged the aforesaid Amending Regulations 2009
\nwhereby 3% seats of the annual sanctioned intake capacity has been
\nlimited only to the candidates with locomotory disabilities of lower
\nlimbs between 50% to 70%.\n<\/p>\n
9.\tThe
\nmain plea taken by the petitioner is that the aforesaid Amending
\nRegulations 2009 are ultravires Sec.39 of the Disabilities Act.\n<\/p>\n
10.\tLearned
\ncounsel for the petitioner would submit that petitioner having been
\ntreated as disabled was admitted in M.B.B.S. course against 3% seats
\nreserved for disabled persons.  Once he having been accepted as
\ndisabled for the purpose of studying M.B.B.S. course, he cannot be
\ndiscriminated vis-a-vis other disabled persons for admission in
\npostgraduate course on the ground that he has upper limb disability.
\nIt has no nexus with the object sought to be achieved.\n<\/p>\n
11.\tLearned
\ncounsel for the M.C.I. would submit that so long as the 3%
\nreservation is concerned, the policy of M.C.I. prescribing higher
\ndisabilities than that provided under the Disabilities Act was within
\nits competence of M.C.I.  Referring to a decision of Orissa High
\nCourt in D.S. Rashmi Ranjan Vs. Chairman, JEE 2004
\nand others
\n in W.P.(C) Nos. 7877
\nof 2004 and analogous cases, he would contend that very often, it is
\nfound that 40% of disability
\nprovided under the Disabilities Act is of such a nature that it may
\namount to grant of unfair advantage to such persons, and thereby
\ndefeating the purpose behind the Disabilities Act.  For example, if
\nthere is a loss of phalanx or phalange of a finger, that may entitle
\na candidate to claim 40% disability.  The rationale behind the upward
\nrevision from 40-60% to 50-60% is that a person with more aggravated
\ndisability should be preferred against another, who suffers from
\nrelatively minor disability.  According to M.C.I., the decision
\nfixing the higher degree of disability has been taken with a view to
\nfurther the objective behind the Disabilities Act, and at the same
\ntime maintain the standards of Medical Education under the Indian
\nMedical Council Act.  1956.\n<\/p>\n
\tIt
\nis submitted that the General Body of the M.C.I., based on the
\nrecommendations of the Executive Committee, was of the view that
\nextending the benefit of reservation to persons suffering from
\ndisability of upper limb should not be allowed, as the upper limbs
\nare required to elicit sign during the clinical examination, and
\nfiner movements are desired for conduct of surgical procedure, and
\naccordingly, M.C.I. prescribed 50-70% of locomotory disabilities of
\nthe lower limbs as the eligibility criteria for consideration of a
\ncandidate for admission to M.B.B.S. course, reserved for disabled
\ncategory.\n<\/p>\n
12.\tIt
\nwas submitted on behalf of learned counsel for the M.C.I. that Orissa
\nHigh Court while pronouncing its common judgment in the case of D.S.
\nRashmi Ranjan (supra)
\nupheld the decision of the M.C.I. to consider only those candidates
\nfor admission to medical courses having locomotory disability of
\nlower limbs upto 70%.  The Orissa High Court held that in view
\nof the definition of `persons with disability’ u\/Sec.2(t) of the
\nDisabilities Act, read with Sec.39 of the said Act, all persons with
\n40% and above disabilities till the limit of 70% would be eligible
\nfor admission to medicine courses.  It is stated that M.C.I. for
\nauthoritative pronouncement on the issue approached the Hon’ble
\nSupreme Court in S.L.P.(C)
\nNos.7952-53\/2005 in M.C.I. Vs. D.S. Rashmi Ranjan
\nand others.\n<\/p>\n
 In the said case, the Supreme Court passed interim order on
\n25.04.2005 and stayed the operation of the judgment of the Orissa
\nHigh Court.  From the record, it appears that the order of stay was
\nlater on clarified by the Supreme Court on 08.08.2006, wherein the
\nSupreme Court ordered that:\n<\/p>\n
“The
\norder dated 25th April, 2005, staying the operation of the impugned
\norder dated 2nd February, 2005, in C.W.P. Nos. 7877 and 7878 of 2004
\ndoes not prevent the admission of physically handicapped candidates
\nhaving locomotive disability of lower limb between fifty and seventy
\npercent.”\n<\/p>\n
13.\tIt
\nappears that the M.C.I., originally noticed a judgment of Delhi High
\nCourt in C.W.P. No.6496\/2000 – Rekha Yagi Vs. Vice
\nChancellor, University of Delhi and others, wherein it was
\nheld by Delhi High Court that Sec.39 of the Disabilities Act has no
\napplication for reservation of seats, and that it refers to
\nreservation of posts as the Section falls under the Chapter
\n`Employment’.  The relevant portion of the judgment dated 17.08.2001
\nis as under:\n<\/p>\n
“Looking
\nat from the above angles, the inevitable conclusion is that Section
\n39 has no application for reservation of seats.  For that purpose the
\nword “post” has to be profitably used in place of “seats”.
\n It falls in line with the legislative intent at amply reflected in
\nSection 32 and Section 33.  In other words, in government educational
\ninstitution or aided institutions three per cent of the posts can be
\nreserved for persons with disabilities.  The procedural aspects for
\nemployment as applicable to other provisions of Chapter VI have
\nperforce application to Section 39.  The reference is accordingly
\ndisposed of.”\n<\/p>\n
14.\tIn
\nthe meeting of the Executive Meeting of the M.C.I., the question fell
\nfor consideration as to whether the guidelines of M.C.I. providing
\nfor locomotory disability of lower limbs between 40-60% as existing
\nat that time in 2003 applies to admission in M.B.B.S. only, or it
\nalso applies to P.G. Medicine courses.  The Executive Committee
\nconsidered the earlier guidelines dated 05.07.2001, whereby it was
\nobserved that the visually handicapped and hearing disabled should be
\ndeleted from the said category, and they should be considered invalid
\nfor admission in the M.B.B.S. course.  Amongst the locomotory
\ndisabled, the upper limb should be functional and normal, as it is
\nrequired to elicit sign during clinical examination, and finer
\nmovements are desired for conduct of surgical procedure.  Again, the
\nfeeling and sensation are important for clinical diagnosis and the
\ntreatment, and locomotory disabled involving upper limb should be
\nconsidered not eligible for admission to the professional medical
\ncourse. The locomotory disabled involving the lower limb was held to
\nbe permissible, but it should be within the guidelines of 40-60%.  On
\nthat basis, taking into account the aforesaid, the Committee decided
\nto withdraw the communication dated 29.04.2003, and the Committee
\nreiterated that only persons with locomotory disability of lower limb
\nbetween 50-70% should be allowed the benefit of reservation under the
\nDisabilities Act for admission in the medical courses.\n<\/p>\n
15.\tSec.39
\nof the Disabilities Act and other relevant provisions of the said Act
\nfell for consideration before a Division Bench of this Court in Palak
\nKailashchandra Jain Vs. Union of India and others reported
\nin 2001(3) GLH 299.  In the said case, the Court considered the
\nquestion whether Sec.39 of the Act provides for reservation of seats.
\n We have noticed that the Delhi High Court in its judgment dated
\n17.08.2001 in C.W.P. No.6496\/2000 held that Sec.39 has no application
\nfor the reservation of the seats.  The procedural aspect for
\nemployment as applicable to other provisions  of Chapter VI have
\nperforce application to Sec.39.\n<\/p>\n
\tIn
\nthe case of  Palak Kailashchandra Jain (supra),
\nDivision Bench of this High Court having noticed Sec.39 of the Act
\nand other provisions, held that Sec.39 though falls in Chapter VI,
\nthe head `employment’, does not mean that Sec.39 is concerned with
\nemployment.  The said provision, i.e. Sec.39, is a mandate to
\ngovernment educational institutions and to the other educational
\ninstitutions receiving aid from the government including the
\ngovernment medical colleges and government aided medical colleges to
\nreserve 3% of the seats for students with disabilities.\n<\/p>\n
16.\tSec.39
\nof the Disabilities Act reads as under:-\n<\/p>\n
“39.\n<\/p>\n
Time-limit for the notification of vacancies.-
\n(1) Vacancies,
\nrequired to be notified to the local Special Employment Exchange,
\nshall be notified at least thirty days before the date on which
\napplicants will be interviewed or tested where interviews or tests
\nare held, or the date on which vacancies are intended to be filled,
\nif no interviews or tests are held.\n<\/p>\n
(2)<\/span><\/p>\n
Vacancies required to be
\nnotified to the Special Employment Exchange notified under sub-rule
\n(1) of Rule 37 shall be notified at least three weeks before the date
\non which applicants will be interviewed or tested where interviews or
\ntests are held, or the date on which vacancies are intended to be
\nfilled, if no interviews or tests are held.\n<\/p>\n
(3) An
\nemployer shall furnish to the concerned Special Employment Exchange,
\nthe results of selection within fifteen days from the date of
\nselection.”\n<\/p>\n
\tPersons
\nwith disability has been defined u\/Sec.2(t), the meaning of which
\nis as follows:-\n<\/p>\n
“2(t)
\n“person with disability” means a condition of arrested or
\nincomplete development of mind of a person which is specially
\ncharacterized by sub-normality of intelligence.\n<\/p>\n
\tWhat
\nis disability, meaning of which has been shown in Sec.2(i), as
\ndefined and quoted hereunder:-\n<\/p>\n
“2(i)
\n“disability” means –\n<\/p>\n
(i)
\nblindness;\n<\/p>\n
(ii) low
\nvision;\n<\/p>\n
(iii)
\nleprosy-cured;\n<\/p>\n
(iv) hearing
\nimpairment;\n<\/p>\n
(v)
\nlocomotory disability;\n<\/p>\n
(vi) mental
\nretardation;\n<\/p>\n
(viii)
\nmental illness”\n<\/p>\n
\tFrom
\nthe aforesaid provisions of the Disabilities Act, it will be evident
\nthat those who have suffered from not less than 40% of any disability
\nas certified by Medical Authority, fall within the meaning of “person
\nwith disability” for the purpose of claiming reservation against
\n3% seats u\/Sec.39.\n<\/p>\n
17.\tSec.33
\nthough deals with reservation of posts, it subdivides 3% quota in 3
\nsub-quotas between (i) blindness or low vision; (ii) hearing
\nimpairment; and (iii) locomotory disability or cerebral palsy.
\nSec.33 make no reservation for persons with disabilities such as
\nleprosy-cured, mental retardation, mental illness.\n<\/p>\n
18.\tThe
\nquestion arises that if Sec.39 provides reservation of not less than
\n3% of seats for “persons with disabilities”, and “persons
\nwith disabilities” means those suffering from not less than 40%
\nof any disability,
\ncan the M.C.I. regulate the admission by making further
\nclassification between the persons with limited disabilities, one
\nhaving lower locomotory disabilities against the other having upper
\nlocomotory disabilities for the purposes of admission in postgraduate
\ncourse?\n<\/p>\n
19.\tLearned
\ncounsel for the M.C.I. would refer to sub-sections (j), (l), (m) of
\nSec.33 of the Indian Medical Council Act, whereunder M.C.I. has been
\nempowered to make regulations for courses and period of study and of
\npractical training, conduct of professional examinations,
\nqualification examinations and the conditions of admission to such
\nexaminations, and any other matter for which provisions have been
\nmade under the Act.  The Orissa High Court in the case of D.S.
\nRashmi Ranjan (supra)
\nheld as follows:-\n<\/p>\n
“13.\n<\/p>\n
However, the decision of the Medical Council with regard to the upper
\ndegree of disability with which a person would be able to undertake
\nthe M.B.B.S. course and the type of disability or suffering with
\nwhich a student can undertake the M.B.B.S. Course cannot be
\nquestioned since the Medical Council is competent to lay down the
\nstandard of a candidate required for entry to medical course.  Lying
\ndown the standard of a candidate for entry to medical course will
\ntake within its sweep the power to lay down the standard of physical
\nability with which a student can undertake the course.  The opinion
\nof the Medical Council that a person with locomotory disability of
\nthe upper limb or with any other disability as in 2(i) of the Act
\nexcept locomotory disability of the lower limbs would not be eligible
\nto take up the medical course since a medical practitioner is
\nrequired to elicit sign during the clinical examination and finer
\nmovements are desired for conduct of surgical procedure so also the
\nfeeling and sensation are important for a clinical diagnosis and
\ntreatment, are reasonable considerations to determine as to whether a
\nperson can undertake the course.  Determination of upper limit of
\ndisability at 70% has not been challenged int he writ applications.
\nThe decision of the Medical Council that person with locomotory
\ndisability of the lower limbs only is eligible to be considered for
\nadmission cannot otherwise be challenged since it is for the Medical
\nCouncil to see as to whether a person
\nwith some disability can effectively undertake the course and
\nultimately can function successfully as a medical practitioner.  The
\nobservations and decisions of the Medical Council that feeling and
\nsensation are important for a clinical diagnosis and a medical
\npractitioner or a student of medical course is to elicit sign during
\nclinical examination and finer movements are desired for conduct of
\nsurgical procedure and, as
\nsuch, persons with maximum
\nof 70% of locomotory disability of the lower limb only and with no
\nother disability are eligible for admission to M.B.B.S. course
\ntherefore cannot be faulted.”\n<\/p>\n
\tHowever,
\nthe aforesaid judgment has been stayed by the Hon’ble Supreme Court
\nin M.C.I. Vs. D.S. Rasranjan
\nby its order dated
\n25.04.2005 in S.L.P.(C) No.7952-7953\/2005.  Subsequently, the Supreme
\nCourt passed the following order on 24.08.2006:-\n<\/p>\n
“After
\nsome arguments, we have asked Mr. Maninder Singh, learned counsel for
\nthe Medical Council of India, as to why candidates suffering from
\nlocomotive disability of lower limb of less than fifty per cent but
\nmore than forty per cent should not get admission in the medical
\ncourses in case sufficient number of candidates for three per cent
\nquota seats with disability of fifty to seventy per cent are not
\navailable.  Mr. Maninder Singh prays for a short adjournment to take
\ninstructions.”\n<\/p>\n
20.\tIt
\nis informed that in view of the aforesaid observation made by the
\nSupreme Court, now a provision has been made by amending the
\nRegulations 2009, to admit disabled persons between 40-60% with lower
\nlimb locomotory disability, if no person is available with lower limb
\nlocomotory disability between 50-60%.\n<\/p>\n
21.\tSimilar
\nquestion fell for consideration before the Gauhati High Court in Smt.
\nAnju Talukdar and Another Vs. State of Assam and Others reported
\nin AIR 2009 Gauhati 54.\n<\/p>\n
 In the said case, the Court noticed a similar educational notice No.
\nDME\/09\/2008\/7791 dated 12.05.1998 issued by the 2nd respondent of the
\nsaid case, wherein the quota was restricted
\nfor physically handicapped candidates only to persons with locomotory
\ndisabilities of lower limbs having disabilities between 50-70%, and
\nrenders the admission of the candidates subject to medical fitness.
\nIn the said case, it was stated that reservation provision had been
\nadopted on the basis of the
\nguidelines of the M.C.I. for filling up reserved seats for persons
\nhaving locomotory disabilities for admission in medicine courses,
\npursuant to M.C.I. letter No.MCI-34(1) 2003-MED\/117773 dated
\n14.07.2003, which inter alia prescribed for reservation for persons
\nwith locomotory disabilities of lower limb between 50-70%, who only
\nbe allowed the benefit of reservation under the Disabilities Act for
\nadmission to all Medicine courses.\n<\/p>\n
\tIn
\nthe aforesaid case of  Smt. Anju Talukdar,
\nclaim was made by a person who had visual impairment or hearing
\nimpairment seeking admission to medical courses in the country.  The
\nGauhati High Court on hearing the parties, observed that when
\nlanguage of Sec.39 of the Disabilities Act being clear and
\ncategorical that the benefit of reservation should be expanded to all
\ncategories of persons with disabilities, which by definition under
\nthe Act recognizes 7 categories of disabilities denying the benefit,
\nalso appears to us to be wholly illegal, in absence of any legal
\ntenable justification, which justification if exists should have been
\nplaced.\n<\/p>\n
22.\tThe
\nrelevant provision of Sec.33 of the Indian Medical Council Act, 1956,
\nas referred to by learned counsel for the M.C.I., do not empower the
\nM.C.I. to limit 3% reservation of seats as provided u\/Sec.39 within a
\nlimited disabled persons.  It is true that the M.C.I. has power to
\nframe regulations laying down the minimum criteria for admission,
\nqualification, etc. for admission to M.B.B.S. or postgraduate medical
\ncourses.  It can also lay
\ndown guidelines of fitness for such guidelines, but the question
\narises that if under the Central Act, viz. the Disabilities Act,
\n“person with disability” as defined is given a meaning of
\n`persons suffering from not less than 40% of any disability’ as
\ncertified by Medical Authority, the M.C.I.
\nhas any authority to frame a regulation, limiting the same only to
\npersons having locomotory disabilities as done by the Amending Act,
\n2009 notified on 25.03.2009?\n<\/p>\n
23.\tIt
\nwill be evident that the Notification dated 25.03.2009 has been
\nissued u\/Sec.33 of the Indian Medical Council Act, 1956, which
\nempowers the M.C.I. to make regulations.  We have noticed that
\nlearned counsel for the M.C.I. could not lay hand on any particular
\nclause of Sec.33, under which the said provision has been made.  A
\ngeneral statement was made that it has been framed under clause (n)
\nof Sec.33, which relates to any matter for which under the Indian
\nMedical Council Act 1956 provisions may be made by regulations.\n<\/p>\n
24.\tThe
\nDisabilities Act was enacted pursuant to a meeting to launch the
\nAsian and Pacific Decade of Disabled Persons 1993-2002 held at
\nBeijing on 1st to 5th December, 1992 wherein they adopted a
\nProclamation on the Full Participation and Equality of People with
\nDisabilities in the Asian and the Pacific Region.  It came into
\neffect from 01.01.1996.  U\/Sec.72 of Disabilities Act, it is made
\nclear that the provisions of the said Act or the Rules made
\nthereafter is in addition to, and not in derogation of any other law
\nfor the time being in force or any Rules or Order or any Instruction
\nissued thereunder enacted or issued for the benefit of persons with
\ndisabilities.  Such provisions have been made under the Central Act,
\nviz. the Disabilities Act, defining the persons with disabilities
\nmeans a person suffering not less than 40% of any disability as
\ncertified by any Medical Authority.  Any decision or regulation
\nframed by the M.C.I. contrary to Sec.2(t) shall be ultravires the
\nsaid provisions.  It is true
\nthat the M.C.I. has jurisdiction to frame regulations for admission
\nin M.B.B.S. or postgraduate medical course, but no provision can be
\nmade against any Central Act, including Sec.2(t) of the Disabilities
\nAct wherein `person with disability’ has been defined.  The
\nPostgraduate Medical Education (Amendment) Regulation 2009, issued by
\nNotification dated 25.03.2009, adding sub-clause(1)(a) and proviso to
\nclause (2)(iv) to Sec.9 therein being contrary to and amounting to
\naltering definition of `person with disability’ as defined u\/Sec.2(t)
\nof the Disabilities Act, we hold the Postgraduate Medical Education
\n(Amendment) Regulations, 2009 Part-I so far as it relates to addition
\nof sub-clause (1)(a) and proviso to clause (2)(iv) to Sec.9 relating
\nto locomotory disability as ultravires.\n<\/p>\n
25.\tWe
\nhave noticed that the aforesaid issue has not been decided by the
\nOrissa High Court or Gauhati High Court in its earlier judgment nor
\nby the Delhi High Court of which reference has been noticed in the
\nsaid case.  It has not been brought to our notice that the validity
\nof the  Postgraduate Medical Education (Amendment) Regulations, 2009
\nis under consideration before the Supreme Court.  It is not in
\ndispute that the petitioner has become disabled much prior to his
\nadmission in M.B.B.S. Course.  He was admitted in the M.B.B.S. Course
\nand has already completed such Course.    He being fit for admission
\nin the M.B.B.S. Course with both upper and lower locomotory
\ndisability, it cannot be stated that he is not fit for admission to
\nPostgraduate Medical Course.\n<\/p>\n
26.\tFurther,
\nif a person having both upper and lower locomotory competes in the
\ntest and falls within the merit category in absence of any
\nprohibition under the Regulations, such person is fit for admission
\nin the Postgraduate Course.  If such person can be admitted against
\nunreserved seat, i.e. merit category, Medical Council of India cannot
\nexclude persons with upper limb locomotory disability from admission
\nin the Postgraduate Course on the ground that such person cannot
\nelicit sign during clinical examination.\n<\/p>\n
\tIt
\nis not the case of the M.C.I. or the respondents that the petitioner
\nas a medical practitioner having M.B.B.S. degree is invalidated as he
\ncannot elicit sign during clinical examination or has no sensation in
\nthe upper limb for clinical diagnosis and treatment.  In absence of
\nany such finding by any of the authorities, he having been allowed to
\ncompete for the M.B.B.S. Course and having already completed the said
\nCourse, for the purpose of admission in the Postgraduate Course he
\ncannot be held to be ineligible.\n<\/p>\n
27.\tIn
\nthe facts and circumstances, while giving the aforesaid declaration,
\nwe direct the respondents to allow the petitioner to continue with
\nhis studies, as taken pursuant to the interim order of this Court,
\nparticularly when he was earlier allowed to study the M.B.B.S. Course
\nand has passed out successfully and completed the internship course.
\nThe writ petition is allowed, but there shall be no order as to
\ncosts.\n<\/p>\n
(S.J.\n<\/p>\n
MUKHOPADHAYA, C.J.)<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
[sn
\ndevu] pps<\/p>\n
\tAfter
\nthe judgement was delivered, counsel for the respondent no.3  prayed
\nfor stay of the judgment in question.  But, in view of the grounds
\nshown in the judgment, prayer for stay is rejected.\n<\/p>\n
(S.J.\n<\/p>\n
MUKHOPADHAYA, C.J.)<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
[sn
\ndevu] pps<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dr.Deval vs Union on 24 November, 2010 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp; Gujarat High Court Case Information System Print 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-145862","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDr.Deval vs Union on 24 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-deval-vs-union-on-24-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.Deval vs Union on 24 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/dr-deval-vs-union-on-24-november-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-11-23T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-07-30T16:45:48+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"22 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Dr.Deval vs Union on 24 November, 2010\",\"datePublished\":\"2010-11-23T18:30:00+00:00\",\"dateModified\":\"2017-07-30T16:45:48+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010\"},\"wordCount\":4310,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/dr-deval-vs-union-on-24-november-2010\",\"name\":\"Dr.Deval vs Union on 24 November, 2010 - 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