Gujarat High Court
Shubham Ramkumar Agrawal vs Chairman, Working Committee For ... on 16 March, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1720 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 1720 of 2022
==========================================================
SHUBHAM RAMKUMAR AGRAWAL Versus CHAIRMAN, WORKING COMMITTEE FOR PROFESSIONAL UNDERGRADUATE/POST GRADUATE MEDICAL EDUCATIONAL COURSE ========================================================== Appearance:
MR BHARGAV HASURKAR(5640) for the Petitioner(s) No. 1 for the Respondent(s) No. 2 MRS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MR. KM ANTANI, AGP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 16/03/2022 CAV ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. The petitioner by way of this petition under Article 226 of the Constitution of India is basically challenging the decision of the respondents in placing petitioner in General category by placing him under said category and removal from the category of Persons With Disability which, according to him, is in violation of the notification dated 13.5.2019 published by the Board of Governors of Medical Council of India in Official Gazette, having notification No.MCI-
34(41)/2019-MED/112862 and has also sought for other reliefs noted hereunder:-
A. This Hon'ble Court may be pleased to issue a writ of Page 1 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Mandamus or any other writ, order or direction in form of writ of mandamus quashing and setting aside the decision of the respondents in placing the petitioner in general category and removing the petitioner from the category of Persons with Disability (PWD) and further be pleased to hold and declare that the decision of the respondent to remove the petitioner from the category of PWD is arbitrary and bad in law and also in violation of notification dated 13.05.2019 published by the Board of Governors of the Medical Council of India in the official gazette having notification no. MCI-34 (41)/2019 MED/112862.
B. This Hon'ble Court may be pleased to quash and set aside decision dated 23.01.2022 taken by the Chairman of the respondent Committee of upholding the decision to place the petitioner in general category and remove the petitioner from the category of PWD.
C. This Hon'ble Court may be pleased to stay implementation and operation of list published by the respondent on 22.01.2022 (ANNEXURE-D) as well as stay the decision of the Chairman dated 23.01.2022 (ANNEXURE-E) during admission, hearing and final disposal of this petition.
D. This Hon'ble Court may be pleased to permit the petitioner to participate in the counselling process undertaken by the respondent in the category of Persons with Disability (PWD). E. This Hon'ble Court may be pleased to grant such other and further reliefs as the circumstances may require. Amendment carried out as per order of the Hon'ble Court dated 17.02.2022. Paras 12(F) to 12(I) inserted. F. This Hon'ble Court be pleased to quash and set aside decision dated 26.01.2022 of the appellate board of the admission committee of declaring that the petitioner was not eligible to pursue medical course under the quota of Persons with Disability and further be pleased to hold and declare that such decision is bad in law in as much as it is contrary to notification dated 13.05.2019 published by the Board of Governors of the Medical Council of India in the official gazette having notification no. MCI-34 (41)/ 2019- MED / 112862. G. This Hon'ble Court be pleased to stay implementation and operation of the decision of the appellate board of the admission committee dated 26.01.2022 (ANNEXURE-F) during admission, hearing and final disposal of this petition.
H. This Hon'ble Court be pleased to hold and declare that rule 6 of the Gujarat Professional Medical Educational Courses (Regulation Page 2 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 of Admission in Undergraduate Courses) (Amendment) Rules, 2018 to be ultra-vires, repugnant and unconstitutional as established a medical board to determine benchmark disability and further be pleased to hold and declare that constitution of such medical board is repugnant to the provisions of Rights of Persons with Disabilities Act, 2016, the Rules framed thereunder.
I. This Hon'ble Court may be pleased to hold and declare that Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Amendment) Rules, 2018 cannot determine, decide or amend in any manner the procedure and standards of higher education as prescribed by the Central Government vide its notification dated 13.05.2019 published by the board of Governors of the Medical Council of India.
2. It appears that later on, during the course of hearing through Video Conferencing on 17.2.2022, two draft amendments dated 16.1.2022 and 27.1.2022 were tendered, which came to be allowed and by virtue of the said draft amendments, petitioner has sought a further relief to challenge Rule 6 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Amendment) Rules, 2018 and has prayed for same being declared as ultra vires of the Constitution of India and these amendments came to be allowed on 17.2.2022. In this background matter is placed before us for further consideration,
3. The case of the petitioner is that petitioner is a prospective under-graduate student who aspires to pursue the course of MBBS and as such has undertaken National Eligibility-cum- Entrance Test (UG) 2021 (NEET) in which he secured 69 percentile marks. The petitioner stated to be suffering from disability in the form of 'Genu Varum Deformity of Both Knee Joints', and having reason of such Page 3 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 disabled condition, he is entitled to appear in NEET under the category of Persons With Disability (PWD) and in order to be able to be considered in the category of PWD, had to undergo an assessment from various Medical Councils and obtained Medical Disability Certificate.
4. It is the case of the petitioner that in the year 2017, the petitioner was assessed by the Medical College and SSG Hospital Baroda and a certificate in favour of the petitioner came to be issued on 19.5.2017, vide certificate No.292842 in which petitioner was certified to have disability to the extent of 40%. For the academic year 2021-22, petitioner pursuant to declaration of result was awaiting of placement in the merit-list in the category, as stated above. However, when merit-list came to be published on 22.1.2022, petitioner's name was not finding place and he was declared as not eligible under PWD category in the merit list. Upon such publication of merit-list, the said action was challenged on 23.1.2022 by way of email and in response thereto, the petitioner was informed that he has been declared as ineligible by the 'Medical Board'. It is further case of the petitioner that after filing of the petition, the petitioner was asked to remain present for physical examination by the Appellate Board on 25.1.2022 and on the next date, i.e. on 26.1.2022, the petitioner was informed by an email that he is eligible for medical course but not eligible for PWD quota and as such, decision of the Page 4 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Medical Board previous in point of time was confirmed. This reply according to the petitioner is suffering from vice of non-application of mind, is also suffering from lack of reasons and in contravention to the notification dated 13.5.2019 published by the Board of Governors of Medical Council of India, and as such, by assailing the said action of removal from category of PWD quota, the petitioner has approached this Court by way of present petition under Article 226 of Constitution of India by raising multiple contentions for the reliefs which are stated herein-before, including the amended reliefs.
5. Learned advocate Mr. Bhargav Hasurkar appearing on behalf of the petitioner has submitted that action on the part of the respondent authority in not considering the petitioner being eligible under PWD category is absolutely arbitrary, contrary to their own notification and not germane to law and as such, same be quashed with a consequential direction by considering the reliefs prayed for. It has been contended that the competent medical authority way back on 19.5.2017 has clearly found on clinical examination that petitioner is having locomotors disability of both lower limb and have found 40% disability and as such, petitioner is clearly falling within the eligibility criteria of PWD category. Hence, he contends action of respondent in removing petitioner from PWD category is erroneous and having effect of frustrating the object which quota for PWD is prescribed.
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6. Mr. Hasurkar has further submitted that by virtue of the notification dated 13.5.2019, guidelines have been framed by the Board of Governors in super-session of Medical Council of India Amendment Notification with regard to admission of students with specified disabilities under Rights of Persons with Disabilities Act 2016 in MBBS course. By inviting attention of the Court to page 32, Appendix H-1 of the said notification, Mr. Hasurkar has submitted that if petitioner is certified to have disability between 40 - 80%, then he becomes eligible for medical course in PWD quota and as per the certificate, as stated above, it has been clearly certified that petitioner is having 40% disability and as such, petitioner is entitled to be considered as eligible in PWD category for medical course. Mr. Hasurkar has further submitted that even while considering the petitioner as not being eligible, parameters which are prescribed for examination and for its evaluation, the authorities have not observed the guidelines which are prescribed by the Ministry of Social Justice and Empowerment, vide its notification dated 4.1.2018 and by drawing our attention to such guidelines for evaluation, reflecting on page 166 onwards of the said notification, a contention is raised that no proper physical assessment is undertaken and in an ipse dixit manner, he has been discarded from PWD quota for medical admission. For substantiating the said contention, Mr. Hasurkar has further relied upon the certificate issued by Ashirwad Hospital Page 6 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 certifying the percentage of disability which was after thorough examination on 8.2.2022 of the petitioner and it is in consonance with the aforesaid guidelines indicating that the petitioner is having 46% disability and stability component reflecting on page 218 and it is also indicated therein that petitioner is having 46% disability, and as such petitioner is entitled to claim for being considered PWD category for medical admission. Mr. Hasurkar has further submitted that the decision and the assessment which has been made by the Appellate Board undertaken on 25.1.2022 is not an assessment which is in consonance with the guidelines prescribed for such assessment and it is not in the manner in which Ashirwad Hospital has undertaken in detail as is reflecting from page 215 onwards of the petition compilation and as such, the decision taken by the authority is absolutely arbitrary, infringing the fundamental rights of the petitioner, hence he contends same deserves to be quashed.
7. Later on, learned advocate Mr. Hasurkar has further submitted that even apart from that, amended Rules are ultra vires of the constitution and require to be declared as bad in law, in view of the fact that same is suffering from lack of legislative competence. It has been submitted that by virtue of parliamentary enactment of 2017, it was not open for the respondent authority to carve out an exception and dilute the effect of Rule 17, as has been stated herein-before, 2017 and to make an amendment in the form of notification dated Page 7 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 4.1.2018. Section 19 of the Disability Act of 2016, the certificate which has been issued is to be considered as valid for all practical purposes and as such, to find out or carve out an exception from said provision to amend the Rules for regulating the admission in undergraduate courses in the field of medical admissions, such act is not permissible. Substitution of Rule 6 of Rules of 2017, by virtue of impugned amendment, the authority has traveled beyond the legislative competence and as such, the amended rules deserve to be declared as ultra vires. By referring to entry No.66 of List-I , Mr. Hasurkar has submitted that fixation and determination of standards in institution for higher education and research of Scientific in Technical Institutions, respondent authority is not competent to prescribe and determine the standards. Hence, the impugned amendment insofar as it relates to Rule 6 dated 4.1.2018 deserves to be declared as bad.
8. Learned advocate Mr. Hasurkar has submitted that in any case, this being a benevolent legislation should be interpreted in favour of the aspirants who are seeking admission in medical course. Hence, the decision taken by the authority and amendment is not on the touchstone of the constitutional mandate as well as on the touchstone of Article 14 of the Constitution of India the acts of respondents are liable to be quashed.
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9. Learned advocate Mr. Hasurkar has further reiterated that the assessment which has been undertaken even by the Board is not as per the strict guidelines published for such evaluation. Hence, even if assuming that the rules are intra-vires, then also the decision of assessment is not correct and has requested to appoint an independent agency/ expert to evaluate the petitioner's disability and for that purpose, petitioner has also filed a Civil Application No.1 of 2022, with a prayer to refer petitioner to an expert appointed by the Gujarat Medical Council or any other authority or institution like Gujarat Medical Council, so as to ensure for assessing the disability of petitioner.
10. After referring to the decision of Karnataka High Court at Bangaluru dated in W.P. No.2947 of 2022, Mr. Hasurkar has submitted that High Court having found that petitioner is eligible to be considered, had directed the respondents therein to consider the claim of the petitioner therein under PWD category by after referring to paragraph 5. It has been submitted that eventuality of contradictory reports in the similar line in which Karnataka High Court has referred to a Board of independent Regional Institute, on the same way, the case of the petitioner be also examined and assessed to ensure appropriate evaluation of disability is undertaken by an independent agency since according to Mr. Hasurkar, Page 9 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 petitioner is eligible to be considered under PWD category in medical admission.
11. It has been submitted by learned advocate Mr. Hasurkar that by virtue of Rule 19 of the Rights of Persons with Disability Rules, 2017, a person to whom certificate is issued under Rule 18, would be entitled to apply for facilities, concessions and benefits as admissible for persons with disabilities under schemes of Government and of non-Governmental organizations funded by the Government. So here also effect be given to petitioner since certificate is already issued in the year 2017. No other submissions have been made.
12. Per contra, learned Government Pleader Mrs. Manisha Lavkumar Shah, with learned Assistant Government Pleader K.M. Antani, appearing on behalf the respondents has vehemently contended that petition is merit-less and same deserves to be dismissed since having no merit in the challenge. Mrs. Shah has drawn the attention of the Court to various documents attached with the detailed affidavit-in-reply submitted from page 87 onwards and has contended that decision is taken strictly in accordance with the Rules which are applicable and there is no arbitrariness of any nature. It has been contended that petitioner who is an aspirant of medical admission, had participated in the process of admission held by the respondent, as PWD candidate, and as per the requirement of Page 10 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Gujarat Professional Medical Educational Course (Regulation of Admission in Undergraduate Courses) Rules, 2017, a student seeking seat reserved for PWD quota is to be assessed by the Medical Board constituted as per the guidelines and it is this Medical Board which decides the disablement. Here, in this case, not only the Medical Board has taken a decision but even a Medical Appellate Board has also confirmed finding of ineligibility of petitioner for PWD quota seat in medical admission. This has been expressly communicated to the petitioner and as such, petitioner is not entitled to seek any relief as prayed for in the petition.
13. Learned Government Pleader Mrs. Manisha Shah has submitted that by virtue of Rule 6 of the Rules, a PWD candidate would be assessed by Medical Board constituted by the State for the purpose and which shall assess disability of a candidate in accordance with the guidelines of MCI as were notified vide Gazette Notification dated 13.5.2019. It has been asserted by Mrs. Shah that neither the Medical Board nor even the Appellate Board has evaluated such guidelines and upon assessment of the petitioner, it has been found that petitioner was not entitled to be considered under PWD category but is entitled for admission in medical course. By referring to page Nos.127, 128 and 129 of reply affidavit, it has been contended that medical Board constituted validly by the Government of Gujarat has certified on 10.12.2021 that petitioner is Page 11 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 having less than 40% disability and as such, he is not entitled for a seat under PWD category. She would submit that while taking this decision it has been submitted that petitioner is eligible for medical course, but not under PWD quota for which he is demanding, so much so, that certificate dated 29.1.2022 is also indicating that the petitioner is having disability of 27% and as such, in any case, petitioner is not entitled for PWD quota.
14. Learned Government Pleader Mrs. Manisha Shah has further submitted that by virtue of notification dated 13.5.2019, extent of specified disability is to be assessed in accordance with guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016) notified in Gazette of India by Ministry of Social Justice & Empowerment dated 4.1.2018 and by referring to the said notification dated 4.1.2018, it has been submitted that while assessing the petitioner, not only the Board but also the Appellate Board has assessed the petitioner on the basis of the principle of evaluation prescribed by the notification in a categorized manner and as such, petitioner is not entitled for any relief.
15. In any case, learned Government Pleader Mrs. Manisha Shah has further submitted that decision which has been cited by the petitioner is not applicable. She would contend that in the instant Page 12 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 case there is no conflict whatsoever is relied upon is not found in favour of the petitioner, but on the contrary, upon physical examination, strictly in accordance with the principles of evaluation, even the Appellate Board has found that petitioner is not entitled for PWD quota in respect of medical admission. When that be so, it is not open for the petitioner to seek as a matter of right such quota which is meant for other meritorious and eligible persons. Learned Government Pleader Mrs. Manisha Shah has further submitted that recently, the Hon'ble Apex Court in a Writ Petition No.885 of 2019 has propounded that whenever expert bodies are opining, Court would not be justified in sitting over said decision as an appellate authority against the opinion formed by the experts and as such, he has submitted that petitioner who is found to be not eligible under PWD category, there is hardly any case made out by the petitioner for exercising judicial review. Further, there are no malafides alleged against respondents in the petition which would entitle the petitioner to seek for judicial review of a decision arrived at against the petitioner and as such also, there is hardly any case made out by the petitioner calling for interference.
16. Learned Government Pleader Mrs. Manisha Shah has further submitted that so far as challenge to the amendment of 2018 insofar as it relates to Rule 6 is concerned, has no legs to stand in view of Page 13 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 the fact that similar Rule 6 has been the subject matter of challenge before the Coordinate Bench of this Court in the form of Special Civil Application No.10980 of 2018, wherein Rule 6 was challenged on almost similar grounds and Court has clearly opined that same is not violative of any provision of the Disabilities Act of 2016 as well as any of the provisions of the Constitution of India and no case is made out for declaring the same as invalid or ultra vires. On the contrary, by virtue of entry No.25 of the concurrent list, the authority is having legislative competence, which is apparently clear from the list-III as prescribed in Schedule-VII of the Constitution of India which entry relates to education, including technical education, medical education and Universities subject to entry Nos.63, 64, 65 and 66 of List-I, vocational and technical training of labour and hence, petitioner has miserably failed to indicate or question the lack of legislative competence in framing this Rule impugned in the petition. It has been contended that notification amending Rule 6 vide notification dated 4.5.2018 is made in exercise of powers conferred by sub- section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 and Government of Gujarat made this rule to amend the Gujarat Professional Medical Educational Courses (Regulation of Admission in Under-graduate Courses) (Amendment) Rules, 2017 and as such, Page 14 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 challenged to Rules- 2017 on the ground of legislative competence is concerned, petitioner has not made out any case to declare the same as ultra vires. In absence of any distinguishable material or in absence of any valid challenge, petition deserves to be dismissed with costs.
17. Having heard the learned advocates appearing for the respective parties and having gone through the relevant records, we find that certain circumstances which are apparent on the record are not possible to be ignored by us.
18. The Gujarat Professional Medical Educational Colleges or Institutions (Regulation) of Admission and Fixation of Fees Act, 2007 was enacted to inter alia regulate admissions to professional medical colleges or institutions of Gujarat. Sub- section (1) of Section 3 of the said Act mandates that all the admissions in the professional courses in the professional educational colleges or institutions should be made in accordance with the provisions of the Act and sub-section (2) of section 3 of the Act would indicate that any admission made in contravention of the Act would be invalid.
Sub-section (1) of section 20 of the Act empowers the Government to make rules for carrying out the purposes of the Act. In exercise of the said power the Government of Gujarat has made Gujarat Professional Medical and Educational Courses (Regulation of Page 15 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Admission Undergraduate Courses) Rules 2017 (hereinafter referred to as the 2017' Rules for the purpose of brevity). Rule 7 of 2017 Rules prescribes that 3% of the available seats in each category in the government colleges and grand-in-aid colleges or institutions should be reserved for loco-motor disabled candidates of the respective category provided that a candidate having "loco-motor disability of lower limbs between 50% to 70% (upper limbs being normal", shall be eligible to apply for admission in accordance with guidelines/regulations of Medical Council of India subject to candidate producing the certificate obtained in the proforma prescribed in the application form. It also mandates that such certificate should be obtained from the Medical Board constituted for the said purpose by the State Government. It further provides as to how the seat is to be filled in if remaining vacant. The Rules 2017 was amended by Amendment Rules 2018 (Annexure R2).
19. The said Rules were the subject matter of challenge on earlier occasion before the co-ordinate Bench of this Court and undisputedly the said challenge has failed before the Division Bench in Special Civil Application No.10980 of 2018 vide judgment and order dated 21.08.2018, whereby, the co-ordinate Bench was pleased to hold that relevant Rule which was under challenge, namely Rule 6 of Rules 2017 not being violative of any of the provisions of the Act of 2016 or Page 16 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 provisions of the Constitution of India. Said order has attained finality and we say so for the reason, no material is placed on record to demonstrate same having been challenged.
20. It appears this Rule later on came to be amended by virtue of Notification dated 04.05.2018 which was in exercise of Rule making authority and this amended Rule precisely Rule 6 which was substituted is now challenged by way of present petition. The said Rule 6 reads as under :-
"6. Reservation for Physically Disabled:
Five per cent of the available seats in Government and Grant- in-aid institution in each category shall be reserved, for person with benchmark, disabilities in accordance with the provisions of the Right of Persons with Disabilities Act, 2016 as provided by Medical Council of India, New Delhi from time to time. The certificate shall be obtained from the Medical Board constituted for this purpose by the State Government. The Certificate shall contain extent of disability and suitability of such candidate for undertaking the course.
The admission on aforesaid reserved seats shall be subject to the furnishing of certificate duly issued by competent authority empowered by the State Government in this behalf."
21. The validity of this Rule is questioned in the present proceedings basically on the ground of lack of legislative competence, but before examining the said issue, few facts related to controversy based on facts deserves to be highlighted.
22. The Board of Governors of Medical Council of India, in exercise Page 17 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 of the power conferred under section 33 of the Indian Medical Council Act, 1956, in super session of the Medical Council of India that the previous sanction of the Central Government, has amended the Graduate Medical Education Regulations 1997 by Amendment. 2019 (Annexure R3) prescribing the guidelines regarding admission of students with "specified disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS Court, which read as under:
Sr. Disabilit Type of Specified Disability Range No. y Type Disability Disability 1 Eligible Eligible for Not for Medical Eligible Medical Course, for Course, Eligible for Medical Not PwD Quota Course eligible for PwD Quota Physical A a. Leprosy Less than 40-80% More disability Locomotor cured 40% disability. than Disability, person* disability Person with 80% including more than Specified 80% disability Disabilities b. cerebral may also be (a to f). Palsy** allowed on case to case c. Dwarfism basis and their functional d. Muscular competency Dystrophy will be determined e. Acid with the aid of attack assistive victims devices, if it is being used, to f. Others *** see if it is such as brought below Amputation, 80% and Poliomyelitis whether they etc.. possesses sufficient motor ability Page 18 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 as required to pursue and complete the course satisfactorily * Attention should be paid to loss of sensations in fingers and hands, amputation, as well as involvement of eyes and corresponding recommendations be looked at.
** Attention should be paid to impairment of vision, hearing, cognitive function etc., and corresponding recommendations be looked at.
*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course.
B. Visual a. Blindness Less than - Equal to
Impairment 40% or More
(*) b. Low disability than
vision 40%
Disabilit
y
C. Hearing a. Deaf Less than - Equal to
impairment 40% or more
b. Hard of Disability than
hearing 40%
Disabilit
y
(*) Persons with Visual impairment/visual disability of more than 40% may be made eligible to pursue MBBS Course and may be given reservation, subject to the condition that the visual disability is brought to a level of less than the benchmark of 40% with advanced low vision aids.
23. In the present proceedings, the case of the petitioner relates to locomotor disability including specific disabilities. Concentration of learned counsel appearing for the petitioner is encircling under Clause-A mentioned in type of disability column which prescribes that a candidate would be eligible for medical course, but not eligible Page 19 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 in PWD quota, if having less than 40% disability. The aforesaid tabular chart prescribing disability range further indicates that for the purpose of eligibility for PWD quota a person/ a student must have disability ranging from 40% to 80% and if more than 80% then such candidate not be eligible for medical course.
24. The case of the petitioner is that by virtue of the certificate which has been issued by the medical authority in past namely way back in 2017 as reflected in Annexure-C indicating the permanent physical impairment, the guidelines to locomotor disability is 40% and based upon this certificate, yet another certificate issued by a Private Hospital, disclosing that petitioner is having more than 40% disability, he is entitled to admission in the medical course under PWD category and as such, respondent authorities are not justified in not including the petitioner under said category. A reference is made to two certificates, one at Annexure-B being the certificate dated 19.05.2017 and another certificate of disability issued by 'Ashirwad Hospital' dated 08.02.2022 placed at Annexure-M in which disability of the petitioner is assessed at 46% and as such, a case is put forth that petitioner is entitled to medical admission under PWD category.
25. To examine this version, the stand taken by the respondent authority deserves consideration, in view of the fact that petitioner has been found to be not eligible for being considered under PWD Page 20 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 category in view of the fact that disability which has been assessed by the competent Medical Board constituted under Rules have clearly opined the extent of disability of the petitioner is less than 40%. It is also clearly stated in the affidavit-in-reply filed by the respondent authority, that the certificate dated 10.12.2021- Annexure-R7 and Annexure-R8 dated 25.01.2022 indicating clearly that what has been found by the Medical Board consisting of four (4) experts who have opined that petitioner is having less than 40% disability and as such, he is not entitled to be placed under the PWD category for UG. medial admission. Communication dated 25.01.2022 is indicating that no doubt the petitioner is eligible for medical course, but not eligible for being placed or considered under PH category i.e. PWD category. In view of the fact that disability having been assessed not only by the Medical Board constituted validly which constitution is not under challenge, but also the Appellate Board also having undertaken such examination of disability and having clearly found that petitioner is not entitled for the benefit of PWD quota and this is the reason why petitioner has been rightly denied benefit under said category for UG. Medical admission. The Appellate Board has also assessed the disability of the petitioner on 25.01.2022 strictly in consonance with the guidelines and the parameters prescribed for evaluation of such disability and has found that disability of petitioner is less than 40%. Thus, when two expert Page 21 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 body namely Medical Board constituted under the extant Regulations and the Appellate Board having found that petitioner is not entitled to be extended the benefit of PWD category, this Court has no reason to take a different and take a view contrary to the experts conclusion.
26. It would not be out of context to also refer to Annexure-R9 which reflects the disability of the petitioner 27% and said fact having been communicated to petitioner there is hardly any reason for us to take a different view and apart from that, Court is not inclined to enter into realm of disputed questions of fact. We are completely satisfied on the basis of the Medical Board's opinion constituted under the Rules and which has found that petitioner is not eligible for being considered under PWD category for admission to UG. Medical course. What has been relied upon by the petitioner to seek such benefit is a certificate issued almost five years back i.e. in the year 2017 and a recent certificate issued by a Private Hospital. The Medical Board's opinion which is constituted under the Act and the Rules prevails over the certificate issued by a private Hospital and there is no reason to take a different view in respect of ineligibility of the petitioner than Medical .Board's opinion.
27. It is undisputed position that Medical Board constituted under the Act for this very purpose to assess the disability and the Appellate Board and the experts body clearly opined and assessed Page 22 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 disability aspects of all the students of this category and as such, in absence of any mala fides or any distinguishable material, we are not inclined to sit over the decision of the experts body consisting of members, which is reflected in the said certificate.
28. Since the question relates to admission of a student for UG. Medical course, we had called for the original papers relating to assessment of the petitioner as to whether the authority has properly observed the guidelines and parameters while assessing the petitioner and Ms. Manisha Lavkumar Shah, learned Government Pleader has produced the original papers relating to assessment of the petitioner and upon perusal, we have found that Medical Board and the Appellate Board which are the authorities constituted under the Act and Regulations for such kind of assessment has undertaken a detailed exercise and have strictly assessed the petitioner's disability in accordance with the guidelines- Annexure-L. A detailed 'Muscle Chart' which is produced before us would clearly indicate that the guidelines which are prescribed for assessment and evaluation of disability have been substantially observed by the Medical Board and certificates have been issued by the experts, not one, but five in numbers. We have found from the original records that five Doctors have signed the said assessment related to the petitioner and have clearly opined that petitioner is having less than 40% disability and as such, he is not entitled for the benefit of Page 23 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 admission under PWD category. We are also satisfied that respondent authority while taking a decision in respect of the petitioner have not committed any procedural irregularity nor violated any norms calling for interference.
29. We are also reminded of the observations made by Hon'ble Apex Court in the recent decision in the case of Vidhi Himmat Karia & Ors., v. State of Gujarat & Ors., (Writ Petition (C ) No. 885 of 2019) and while dealing with the scope of judicial review in respect of conclusion of expert bodies including Medical Board where-under the Hon'ble Apex Court has held:
"....When the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts....."
In the instant case, not only the Medical Board constituted under the Act, but also the Appellate Board has also clearly opined against the petitioner. Hence, we refrain ourselves from interfering while exercise of extraordinary jurisdiction and we are not inclined to grant any relief to the petitioner.
30. Now, in the context of the aforesaid observations, and upon perusal of the factual matrix, the submission which has been made that the decision taken by the authority is not supported by reason, but here is the case in which the maine reason which is assigned is Page 24 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 that the petitioner is having disability of less than 40% and as such, not entitled for admission to UG Medical course under PWD category.
31. Now, turning our attention back to the issue relating to legislative competence and for that purpose, we have perused Entry no. 66 of the Union list enacted in Constitution of India and has also perused the relevant entries in the State List -II and Concurrent List - III and upon perusal of these, we have found Entry 25 of List - III of the Concurrent List which relates to Education, including technical education, medical education and universities subject to the provisions of entry 63, 64, 65 and 66 of List I; vocational and technical training of Labour. We are of the opinion that no case is made out by the petitioner of lack of legislative competence. On the contrary, the Rule under challenge i.e. Rule 6 of Notification dated 04.05.2018 is in exercise of powers conferred by sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Education Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.3 of 2008) and Government of Gujarat has made Rules further to amend the Gujarat Professional Medical Educational Courses (Regulations of Admission in Undergraduate Courses) Rules, 2017, and as such, so far as legislative competence is concerned, the petitioner has miserably failed to make out any case.
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32. Apart from the above, that we are benefited to note the decision of the co-ordinate Bench dated 21.08.2018 rendered in Special Civil Application No. 10980 of 2018 where-under it was found that Rule 6 of Rules of 2017 was made the subject matter of challenge almost on similar ground and after detailed discussion, it has been clearly opined that Rule 6 of Rules of 2017 is not violative of any of the provisions of the Act of 2016 or provisions of the Constitution of India and the petition came to be dismissed, which is already noticed herein-above. No distinguishable circumstance or contention is raised by the petitioner in respect of challenge laid to the amended Rule 6 while contending lack of legislative competence and as such, we are of the opinion that petitioner has not made out any case which would call for our interference.
33. So far as alternate contention raised that Rule 19 of The Rights of Persons with Disabilities Rules, 2017, mandates that certificate issued under Rule 18 is to be generally valid for all purposes. When examined it would emerge from Rule 19 that a person to whom the certificate is issued under Rule 18 would be entitled to apply for facilities, concessions and benefits admissible for persons with disabilities under the schemes of the Government and of non- Governmental organizations funded by the Government. We see no reason that there is any conflict of this rule with amended Rule 6 of Page 26 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Rules 2017 as contended by the learned advocate for the petitioner. Rules- 2017 are framed with the specific object to regulate admission to the first year of Professional Medical Educational Courses and the aim and object of this Rule is to see that Professional Medical Educational Courses can be properly regulated in respect of its admission process and are meant for achieving the said specific object namely to regulate medical admission. Hence, on the basis of purposive construction also, we are satisfied that no case is made out by the petitioner for assailing the Rule-2017 being in conflict with Disabilities Rules- 2017. It is always open for the authority to prescribe the parameters to regulate admission in Professional Medical Educational Courses.
34. In the instant case, no mala fides are alleged nor any personal bias is reflecting from any corner of the petition. When two expert bodies framed and constituted under the Act have clearly opined and assessed the disability of the petitioner and have found that petitioner is having less than 40% disability, said decision would certain a decision with sound application of mind upon observance of proper procedure as contemplated under the Rules and such experts opinion cannot be said to be suffering from any infirmity.
35. At this stage observations of the Hon'ble Apex Court in the case of Madras Bar Association v. Union of India & Anr., Page 27 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 reported in 2021 SCC Online SC 463, requires to be noticed, where-under it has been clearly observed that where there is a challenge to the constitutional validity of a law enacted by the legislature, then Court must keep in view there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown to hold otherwise. It has been observed that very limited scope of judicial review is available for the Constitutional Court and same principle is applicable in respect of present case on hand while testing Rule 6 of Rules of 2017 where challenge to amended Rule 6 of Rules of 2018 is laid as being in conflict and same has no legs to stand. Rule 6 of Rules 2017 is not possible to be construed as violative of either provisions of disabilities Act of 2016 or suffering from any lack of legislative competence or being violative of any of the provisions of the Constitution of India. The observations of Hon'ble Apex Court in this regard reads thus :-
"39. The controversy that arises for the consideration of this Court relates to the legislative response to the judgment of this Court in MBA-III. The power to strike down primary legislation enacted by the Union of India or the State legislatures is on limited grounds. The Courts can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution of India. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown. In State of Madhya Pradesh v. Rakesh Kohli, this Court held that sans flagrant Page 28 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 violation of the constitutional provisions, the law made by Parliament or a State legislature is not declared bad and legislative enactment can be struck down only on two grounds : (I) that the appropriate legislature does not have the competence to make the law, and (ii) that it takes away or abridges any of the fundamental rights enumerated in Part-III of the Constitution or any other constitutional provisions. Subsequently, the Court has also recognised "manifest arbitrariness" as a ground under Article 14 on the basis of which a legislative enactment can be judicially reviewed."
36. In a recent decision delivered by the Hon'ble Apex Court in the case of Punjab State Power Corporation Limited & Anr. v. EMTA Coal Limited reported in (2022) 2 SCC 1, on the issue of judicial review, it has been observed that while exercising power of judicial review, the Court is not concerned with the ultimate decision, but the decision-making process. The limited areas in which the Court can enquire, are as to whether a decision-making authority has exceeded its powers, committed an error of law or committed breach of principles of natural justice. This Court can also examine as to whether the authority has reached a decision which no reasonable person would have reached or such authority has abused its powers. It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfillment of that policy is fair and while examining the question of irrationality, the Court will be guided by Wednesbury Principle. The decision maker's freedom to change the policy in public interest has held cannot be fettered by applying the principle of substantive legitimate expectation and so long as the Page 29 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022 C/SCA/1720/2022 CAV ORDER DATED: 16/03/2022 Government does not act in an arbitrary or in unreasonable manner, the change in the policy does not call for any interference by judicial review even on the ground of a legitimate expectation of an individual or a group of individuals being defeated. Keeping this salutary principle in mind propounded by the Hon'ble Apex Court, we find no infirmity in the impugned order and petitioner has not made out any case which would fall within any of the parameters as stated above. Hence, we are of the considered opinion that petition does not deserve to be entertained.
37. In view of the aforesaid discussion, we are of the considered view that petitioner has miserably failed to make out any case and the petition being devoid of merit, it stands DISMISSED with no order as to costs.
38. Since main petition is disposed of, Civil Application does not survive and same stands DISPOSED OF.
Sd/-
(ARAVIND KUMAR,CJ) Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR Page 30 of 30 Downloaded on : Thu Mar 17 01:29:39 IST 2022