Gauhati High Court
Ahadul Laskar vs The State Of Assam And 2 Ors on 19 December, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
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GAHC010220922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6973/2022
AHADUL LASKAR
S/O. AHMED ALI LASKAR, VILL. SAIDPUR PART-II, P.O. NIT (BORAKHAI),
DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. F ASSAM, MEDICAL
EDUCATION AND RESEARCH DEPTT., DISPUR, GUWAHATI-06.
2:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIX MILE
KHANAPARA
GUWAHATI-22.
3:THE NATIONAL MEDICAL COUNCIL REPRESENTED BY ITS SECRETARY
GENERAL
NEW DELH
Advocate for the Petitioner : MR. N H LASKAR
Advocate for the Respondent : SC, HEALTH
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
19-12-2022 Heard Mr. N. H. Laskar, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing counsel, Health and Family Welfare Department, Assam for the respondent Nos. 1 & 2.
Page No.# 2/6 Also heard Mr. D. K. Baidya, learned counsel appearing on behalf of Mr. A. M. Bora, learned Senior Standing counsel, National Medical Council for the respondent No. 3.
2) Matter pertains to admission in the Government Medical & Dental Colleges of Assam under the 'Persons with Disability' (PwD) (DIVYANG) category in the 1 st year MBBS/BDS courses in the academic session 2022-2023.
3) The petitioner Ahadul Laskar appeared in the National Eligibility-cum-Entrance Test (NEET) Examination, 2022 and its result was declared on 07.09.2022 which he passed scoring 280 marks out of the total marks of 720.
4) Having diagnosed with "Locomotor Disability" with 65% permanent disability in relation to his both upper limbs and both lower limbs as certified by the Department of Orthopaedics, Silchar Medical College & Hospital, Silchar, Cachar, Assam as well as by the Medical Authority, Cachar, Assam under the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India and having an Unique Disability ID issued by the Joint Director of Health Services, Assam, Silchar, Cachar; the petitioner as a physically disabled person claimed for admission in the 1 st year MBBS/BDS course in Government Medical/Dental Colleges of Assam for the Academic Session of 2022-2023 under the 5% reserved quota of PwD category of the State quota as per his entitlement as provided in the guidelines of the Union of India under the Rights of Persons with Disability Act, 2016 and the provisions of the Medical Colleges and Dental Colleges of Assam (Regulations on Admission into 1 st year MBBS/BDS courses) Rules, 2017 as amended in 2022 under the State quota seats of Assam.
5) For that purpose, the petitioner was called for counselling for his admission in the 1 st year MBBS/BDS course in Government Medical & Dental Colleges of Assam for the Session of 2022-2023 and for his examination to determine his disability; he appeared before the concerned Disability Assessment Board on 20.10.2022.
6) After examining the petitioner on 20.10.2022, the said Board assessed that the petitioner has 65% of Locomotor Disability having 'congenital deformities of upper and lower limbs (conjoint fingers and toes). On making such assessment, the said Disability Assessment Board remarked that the petitioner is not eligible for admission in the Government Medical Colleges of Assam as per NMC Guidelines under the 5% reserved quota of PwD category. Accordingly, the Director of Page No.# 3/6 Medical Education, Assam in its Educational Notice issued under No. DME/UG/234/2022/20668 dated 22.10.2022 notified that the petitioner is not eligible for admission into 1 st Year MBBS/BDS Courses in the Government Medical and Dental Colleges of Assam for the Session 2022-2023 under the PwD (DIVYANG) category.
7) Being aggrieved with the same, the petitioner has preferred this writ petition.
8) Respondents in the Health and Family Welfare Department of the State filed an affidavit in the matter to which the petitioner has filed his reply.
9) Mr. Gogoi, learned Standing counsel, Health and Family Welfare Department placed the Information Bulletin relating to National Eligibility-cum- Entrance Test (Under Graduate) - 2022 and also the Notification dated 04.02.2019 published in the Gazette of India Extraordinary on 05.02.2019 as well as the Notification dated 13.05.2019 published in the Gazette of India Extraordinary on 14.05.2019, both issued by the erstwhile Board of Governors in Super-Session of Medical Council of India, presently known as National Medical Commission, pertaining to the Appendix "H" of said Notification dated 04.02.2019 and Appendix "H-1" of said Notification dated 13.05.2019 relating to the "Graduate Medical Education, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997" that relates to "Guidelines regarding admission of students with "specified disabilities" under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS."
10) Appearing on behalf of the National Medical Commission, (erstwhile Medical Council of India) Mr. A. M. Bora, learned Senior Standing counsel clarified the stand of the said Commission with regard to the two specific Notifications dated 04.02.2019 as well as 13.05.2019 issued by the erstwhile Medical Council of India pertaining to the Appendix "H" and Appendix "H-1" of the "Graduate Medical Education Regulations, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997", that relate to "Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS" under Locomotor Physical Disability Type with Specified Disability of (a) Leprosy cured person*, (b) Cerebral Palsy**, (c) Dwarfism, (d) Muscular Dystrophy, (e) Acid attack victims and (f) Others*** such as Amputation, Poliomyelitis etc. and the Asterix* Attention should be paid to loss of sensation in fingers and hands, amputation as well as involvement of eyes and corresponding be looked at; Asterix** Attention should be paid to impairment of vision, Page No.# 4/6 hearing, cognitive function etc. and corresponding recommendations be looked at and Asterix*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course - remained unchanged inspite of said Appendix "H" notified on 04.02.2019 was substituted by Appendix "H-1" notified on 13.05.2019.
11). As per the Court's order dated 28.11.2022 passed in this proceeding and the communication No. DME/UG/234/2022/22338 dated 29.11.2022 of the Director of Medical Education, Assam, the Principal-cum-Chief Superintendent of the Gauhati Medical College and Hospital, Guwahati reconstituted the Disability Assessment Board consisting of Professor & Head of the Department of Orthopaedics; Professor of Psychiatric, Professor of Neurology and an Assistant Professor of Haematology of the Gauhati Medical College & Hospital, Guwahati for reassessment of disability status of the petitioner.
12) In pursuance of the Court's order dated 28.11.2022; the petitioner appeared before the said reconstituted Disability Assessment Board on 02.12.2022.
13) After assessing the disabilities of the petitioner for his admission in the 1 st year MBBS Course for the Session 2022-2023 under the 5% reserved quota for Persons with Disabilities (DIVYANG) category in the Government Medical Colleges of Assam under the State quota, the said reconstituted Disability Assessment Board on examining the petitioner on 02.12.2022 found as follows:-
· that Ahadul Laskar is a case of congenital deformity affecting the left upper limb and left lower limb and minimal deformity of right little finger.
· On examination he is found to have conjoint fingers affecting 3 rd and 4th fingers of left hand and mild flexion deformity of the 5th finger of the right hand. · He seems to have sufficient strength, intact sensation and range of motion of his both upper limbs including hands inspite of his present deformity which will not hamper in pursuing his medical course.
· On examination of left lower limb he is found to have congenital anomalies affecting the left foot (conjoint toes of 1 st, 2nd & 3rd) and mild cavus deformity of left foot.
· His total disability stands at 65%.
14) The said reconstituted Disability Assessment Board by its report dated 02.12.2022 opined
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that - "the petitioner may be considered for pursuing medical course as per "Board of Governors in super-session of Medical Council of India Amendment Notification No. MCI-34(41)/2019- Med./112862 dated 13/05/2019 (Appendix "H-1")."
15) Mr. Laskar, learned counsel for the petitioner submitted that as directed by the Court on 07.12.2022, the petitioner on 14.12.2022 submitted a representation before the Director of Medical Education, Assam along with the copy of his examination report dated 02.12.2022 regarding his disability as determined by the reconstituted Disability Assessment Board, noted above.
16) Mr. Laskar, learned counsel for the petitioner also submitted that till date, the petitioner has not been called for counselling for the purpose of his admission in the 1 st year MBBS/BDS Courses in the Government Medical Colleges of Assam under the 5% reserved State quota for Persons with Disabilities (DIVYANG) category.
17) On being enquired, Mr. Gogoi, learned Standing counsel, Health and Family Welfare Department of the State apprised the Court that 21.12.2022 is the last date for admission in the 1st year MBBS Course for the Session 2022-2023 in the Government Medical Colleges of Assam under the PwD category and a seat under the said quota has been kept vacant because of the present matter pending for adjudication before the Court.
18) Considering the entire aspect of the matter and since the reconstituted Disability Assessment Board, reconstituted by the authorities concerned of the respondents in the Health and Family Welfare Department of the State on 02.12.2022 after reassessing the disabilities of the petitioner opined that he may be considered for pursuing medical course as per "Board of Governors in super-session of Medical Council of India Amendment Notification No. MCI- 34(41)/2019-Med./112862 dated 13/05/2019 (Appendix "H-1"), finding him fit enough to pursue the Medical Course as per the Notification of the Medical Council of India dated 13.05.2019; therefore, the respondents in the Health and Family Welfare Department of the State including the Director of Medical Education, Assam are directed to call the petitioner for counselling for his admission in the 1st year MBBS/BDS courses, as the case may be, in the Government Medical/Dental Colleges of Assam, for the Session of 2022-2023 under the 5% reserved quota of Persons with Disability (DIVYANG) category, noted above, forthwith and to consider the case of Page No.# 6/6 the petitioner for his such admission by passing necessary order in accordance with law.
19) Till such consideration of the case of the petitioner and their decision in that regard, as directed above, the respondent authorities in the Health and Family Welfare Department as well as the Director of Medical Education, Assam shall not allot and fill up one seat of MBBS/BDS course, as the case may be, for the Session of 2022-2023 under the 5% reserved quota of Persons with Disabilities (DIVYANG) category in the Government Medical & Dental Colleges of Assam.
20) Petitioner shall submit a certified copy of this order before the Director of Medical Education, Assam, forthwith, obtaining necessary acknowledgement from the said authority in that regard.
21) With the above observation and direction, this writ petition stands disposed of.
JUDGE Comparing Assistant