Calcutta High Court (Appellete Side)
Tathagata Ghosh vs The Union Of India & Ors on 22 November, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
1
22.11.2018
Item no. 10
ddas WP 13100 (W) of 2018
Tathagata Ghosh
Vs
The Union of India & Ors.
+
CPAN 899 of 2018
In WP 13100(W) of 2018
Tathagata Ghosh
Vs.
Dr. Saibal Kumar Mukherjee
Mr. Biswarup Bhattacharya
Mr. Alauddin Mondal
... ... For the applicant/petitioner
Mr. Swapan Kumar Dutta, ld AGP
Mr. Dipankar Das Gupta
... ...For the State
Mr. Santanu Chatterjee
... ...For the UOI
Mr. Sougata Bhattacharyya
.. ...For the MCI
This writ petition has been heard on dates preceding and today.
Record of submissions made earlier appear in order sheet, copies of which
parties have obtained.
Petitioner has challenged cancellation of seat allotted to him by
document disclosed at page 39 of writ petition. Mr. Biswarup
Bhattacharya, learned advocate appearing on behalf of petitioner
2
submitted, purported reason in impugned cancellation is PC Changed: PC
to NO. This indicates 'physically challenged' changed to 'physically
challenge no'. This reason cannot stand scrutiny. He referred to disability
certificate dated 28th April, 2018 granted by District Hospital, Howrah to
his client as well as document dated 21st June, 2018 issued by
I.P.G.M.E&R. Relevant as appearing from the former is that his client's
percentage of permanent/partial disability having changes of variation is
calculated at greater than 40% and the case requires review after two
years. By latter document similar diagnosis of more than 40% in Schizo
affective disorder has been stated. He referred to Rights of Persons with
Disabilities Act, 2016 to clauses (r) and (s) under definitions section 2 and
category 3 in the schedule referred to in clause (zc), also under said
definition section 2. He pointed out, this category 3 in the schedule has
been reproduced in paragraph 5 of affidavit-in-opposition used by State.
Furthermore, prologue of a report has been annexed to said affidavit in
which it is said, proposal so forwarded to Ministry of Health and Family
Welfare have till date not been approved by the competent authority of
Government of India. So his case that respondent authorities be directed
to give petitioner admission on interference of this Court.
Mr. Dutta, learned senior advocate, Additional Government Pleader, appearing on behalf of State relied on affidavit used by his client, particularly to extract therefrom reproduced below :- 3
"5.(viii) ... ... ...It is also placed on record that the Principal, NRSMCH, Kolkata has followed the extant guideline of MCC, Government of India, WBMCC, Government of West Bengal and the Medical Council of India in taking the decision of cancellation of the allotted seat of the petitioner."
Today Mr. Dutta submitted further, no seats are now available for petitioner to be accommodated in event there is interference by Court to that effect.
Mr. Sougata Bhattacharyya, learned advocate appearing on behalf of Medical Council of India submitted, there had not been gazette notification of report submitted by his client till 30th August, 2018 and he does not have instructions regarding whether between then and today such notification has been published. Mr. Chatterjee, learned advocate appearing on behalf of Union of India had relied on copy of minutes of meeting chaired by Additional Secretary of concerned department on 17th August, 2018, regarding guidelines for admission of persons with disability to medical education. Paragraph 4.4 dealt with intellectual disability. In sub-paragraph 4.4.3 the following was said :-
"4.4.3 It was decided that persons with disability of 40% or more will be allowed to pursue medical education with PH quota. No upper limit needs to be prescribed as the candidate even with such extent of disability would have qualified NEET. Those with disability of less than 40% would not be entitled to PH quota benefit."4
Disability certificate dated 28th April, 2018 issued by District Hospital, Howrah diagnosed petitioner as follows :-
"1. He is a Physically (Orthopaedically, Visionary, Speech and Hearing Disabled/Mentally Challenged person with SCHIZO AFFECTIVE DISORDER [Psychometry - reveals/IDEAS Score = 8], thinking disturbance, severe level of obsessions. (nature of disability)
2. ... ... ...
3.His/her percentage of permanent/ partial disability / disability having changes of variation is calculated as >40% (FORTY) % & the case requires review after 02 (Two) Yrs."
Further information regarding petitioner's condition have been given in the certificate but same are not relevant for purpose of adjudication of challenge in this writ petition. Document dated 21st June, 2018 issued by Director, I.P.G.M.E &R says, inter alia, as follows :-
"2. Pursuant to the above application, you have been examined by the undersigned/Medical Board on ..........., and I regret to inform that, for the reasons mentioned below, it is not possible to issue a disability certificate in your favour;
(i) More than 40% in Schizo affective disorder
(ii) Not eligible as a pt of Psychiatry.
(iii)........."
Court understands schizo affective disorder Psychometry, said by District Hospital, Howrah as being suffered by petitioner, to reveal, inter alia, thinking disturbance and severe level of obsession apart from 5 fixing percentage of disability at greater than 40%. Document dated 21st June, 2018 issued by Director I.P.G.M.E&R also says more than 40% in schizo affective disorder. Second statement in said document says, not eligible as a patient of psychiatry which is not a diagnosis of petitioner but an opinion about him. So, Court has before it material to show schizo affective disorder is, inter alia, thinking disturbance and severe level of obsession. Category 3 in the schedule covers the two disorders under mental behaviour. 'Thinking disturbance' would be covered by 'substantial disorder of thinking' and 'severe level of obsession' under 'perception orientation that grossly impairs judgment'. Under applicable law petitioner is thus found eligible to get admission.
Regarding submission of State made today that no vacancy is available in Nil Ratan Sircar Medical College and Hospital, Court finds impugned in writ petition is cancellation of seat allotment made by communication dated 11th July, 2018. This writ petition was filed on 25th July, 2018. No interim order was made on 14th August, 2018 since on behalf of Medical Council of India, material was handed up from which it appeared that guidelines for purpose of assessing extent of specified disability in a person included under Rights of Persons with Disabilities Act, 2016 was published in Gazette of India : Extraordinary on 5th January, 2018. That was relied upon by the Council as material standing in the way of petitioner being granted interim relief. On subsequent date submission of the Council was that there was no such notification made 6 and thereafter impugned cancellation certificate stayed as an interim measure on 30th August, 2018. State was on notice, as would appear from order sheet, petitioner had applied in contempt for violation of direction staying impugned cancellation by application filed on 28th September, 2018, wherein petitioner's contention is that staying of cancellation means admission be granted, at least provisionally. On all those occasions State did not say there was no vacancy or that seat allotted to petitioner had been filled up pursuant to impugned cancellation, since stayed. Further there is no such whisper even in affidavit of State affirmed on 10th October, 2018, long after interim order dated 30th August, 2018 was made. On such facts this Court directs respondent authorities to grant admission to petitioner in current academic year at Nil Ratan Sirkar Medical College & Hospital forthwith. By reason of order in the writ petition made as above, the same is disposed of. In view of final order in the writ petition, no order need be made for contempt on interim order and the contempt application is disposed of as well.
Mr. Dutta prays for stay of operation of this order, which is opposed by Mr. Biswarup Bhattacharya. Prayer is considered and rejected.
(Arindam Sinha, J.)