Gujarat High Court
Harshil Maheshbhai Upadhyay vs State Of Gujarat on 23 July, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/11989/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11989 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? YES
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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HARSHIL MAHESHBHAI UPADHYAY
Versus
STATE OF GUJARAT
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Appearance:
MR S.I. NANAVATI, SR. ADVOCATE WITH MR.VANDAN BAXI FOR
MS.ANUJA S NANAVATI(5229) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER(1) WITH MS
JYOTI BHATT, AGP for the Respondent(s) No. 1
MS MANISHA LAVKUMAR SHAH, SR. ADVOCATE WITH MR. KM
ANTANI(6547) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 23/07/2019
CAV JUDGMENT
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C/SCA/11989/2019 CAV JUDGMENT
1. Considering the exigency in the matter, the petition was finally heard at the admission stage with the consent of the learned Advocates for the parties.
2. The petitioner, aspiring to get admission in the first year course of MBBS under the category reserved for the physically handicapped persons, had initially filed the petition seeking direction against the respondent No.2 to grant him the admission on the basis of the certificate of disability dated 3.9.2015 certifying his disability to the extent of 55% and to grant consequential benefits to him. The petitioner also challenged the impugned merit list showing the status of persons with disabilities at Annexure-A, to the extent it held the petitioner not eligible for the Medical course. The respondent No.2 having filed the reply and produced on record the report dated 3.7.2019 of the Medical Appellate Board, the petitioner has subsequently amended the petition by incorporating the prayer seeking direction to Page 2 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT quash and set aside the said report mainly on the ground that it was not in consonance with the Graduate Medical Education Regulations 1997 as amended in 2019 (Annexure-O).
3. The short facts giving rise to the present petition are that as per the certificate of disability dated 3.9.2015 issued under the provisions contained in Rights of Persons with Disabilities Act 2016 (hereinafter referred to as "the Disabilities Act) (Annexure-C), the petitioner suffers from the locomotor disability of upper limb - right-hand, and has the permanent disability to the extent of 55%. The petitioner had appeared in the Higher Secondary Certificate Examinations held in the year 2018 by the Gujarat Secondary and Higher Secondary Education Board, and being desirous of pursuing medical education, had also appeared in the National Entrance cum Eligibility Test (NEET) 2018. He had secured a score of 299 out of 720 in the NEET held in May 2018. The petitioner had also applied for getting admission in the medical course under the category of physically Page 3 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT handicapped candidates, however, he was disqualified on the ground that he had the disability more than the permitted limit (Annexure-R-1).
4. Since the petitioner was still desirous of pursuing the medical education, he once again appeared in the NEET conducted in May 2019 and secured a score of 265 out of 720 in the said examination. The petitioner once again made application for admission in the first year medical course under the category of physically handicapped candidates. The petitioner was called for examination by the Medical Board of Civil Hospital, B. J. Medical College, Ahmedabad, where the panel of Examiners examined the petitioner on 25.6.2019. Thereafter the Medical Board notified the result of the said examination, however, the name of the petitioner was not included in the same. Upon the inquiry, the petitioner was informed that his candidature under the physically handicapped category was assessed to be ineligible. The petitioner thereafter was called upon to remain present Page 4 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT before the Medical Appellate Board on 3.7.2019 for reexamination. Accordingly, he again remained present before the Medical Appellate Board. The status of the persons with disabilities applications of Medical Appellate Board notified on 6.7.2019 showed the petitioner as "not eligible for medical course". Hence, the present petition was filed. The respondents having produced the report dated 3.7.2019 of the Medical Appellate Board, the same has been challenged by the petitioner by amending the petition. It has been contended that though the petitioner's disability was assessed to the extent of 55%, which was within the benchmark disability as per the MCI Regulations, he was held ineligible by the Medical Appellate Board, without assigning any reasons and that the said report was in violation of the MCI Regulations and Article 14 of the Constitution of India.
5. In the affidavit-in-reply filed on behalf of the respondent no.2, it has been contended inter alia that the Medical Council of India (MCI) vide Notification dated 13.5.2019 has notified Page 5 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT the "Graduate Medical Education Regulations (Amendment) 2019", amending the "Graduate Medical Education Regulations 1997", whereby Appendix H-I has been substituted in place of Appendix H contained in Regulations of 1997, with regard to the "Guidelines regarding admission of students with specified disabilities under the Disabilities Act, with respect to admission in MBBS Course". As per the said Appendix H-I, in order to be eligible for medical course under the physically handicapped quota, 40% to 80% disability is required, and so far as locomotor disability, including specified disability is concerned, a special mention has been made to the effect that "both the hands intact, intact sensation, sufficient strength and range of motion are essential to be considered eligible for medical course". It is further contended that the State Government vide the Resolution dated 29.6.2018 has constituted Appellate Board to offer further opportunity to all the candidates, who are found unsuitable/ineligible for medical/dental admission by the Medical Board. The said Page 6 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Government Resolution stipulates that the Medical Appellate Board comprising of the Dean, B. J. Medical College, the Superintendent of Civil Hospital and an Expert regarding the concerned disability, who are not in the panel of Members of the Medical Board, shall examine the suitability of such candidate for undertaking the course. Accordingly, the petitioner was examined by the Medical Board of ACPUGMEC, however, the Board adjudged him ineligible for the medical course. The petitioner thereafter was referred to the Medical Appellate Board of ACPUGMEC, comprising of three Experts; one physiotherapist and two orthopedic surgeons. The Medical Appellate Board also held that the petitioner was ineligible for medical course. It is further contended that the petitioner's disability certificate appended by the petitioner to his application, categorically referred to his disability as "locomotor disability with the upper right limb being affected with Radio Ulna Synostosis". The petitioner, therefore, did not meet with the eligibility criteria under the physically Page 7 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT handicapped category. The respondent No.2 has produced on record the reports/opinions of the Medical Board and the Medical Appellate Board. The respondent no.2 also has filed further affidavit elaborating the said reports by contending inter alia that the Medical Board and the Medical Appellate Board had noticed that the petitioner suffered from "Bilateral Radio Ulnar Synostosis" owing to which the supination of the affected limb was restricted. The Body of Experts in the examination reports have reasoned the petitioner's disability to be such, because of the impossibility of pronation and supination of the affected limb, and that the same shall have impairment of hands and their range of motion. It has been further elaborated in the said affidavit that the petitioner, owing to his disability may have muscle power, however, due to restriction of forearm as a primary impairment, the same would suffer from a mechanical disadvantage to the muscles of the wrist that makes the hand functions difficult.
6. Since during the course of arguments, the Page 8 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT provisions of the Disabilities Act and the Rules made thereunder, as also the Gujarat Professional Medical Educational Colleges and Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as "the Act of 2007"), and the Rules made thereunder as amended in 2018, and also the Graduate Medical Education Regulations (Amendment), 2019, have been pressed into service, it would be beneficial to refer the said relevant provisions, before appreciating the rival contentions raised by the learned Advocates for the parties.
7. The Disabilities Act has been enacted to give effect to the United Nations Convention on the Rights of Persons with disabilities and for the matters connected therewith and/or incidental thereto. Section 2(r) of the said Act defines "person with bench-mark disability" as under:-
"2. In this Act, unless the context otherwise requires,--
(r ) "person with benchmark disability"
means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in Page 9 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;"
8. Section 2(s) defines "person with disabilities"
as under:-
"(s ) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"
9. Section 2(zc) defines "specified disabilities"
to mean "disabilities as specified" in the schedule.
10. Section 3 of the Disabilities Act states inter alia that the appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity, and respect for his or her integrity equally with others. No person with disabilities shall be discriminated on the ground of disabilities, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. Section 16 thereof states inter alia that the appropriate Government and the local authorities shall endeavour that all Page 10 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT educational institutions funded or recognized by them provide inclusive education to the children with disabilities. Section 32 mandates that all Government Institutions of higher education and other higher education Institutes receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities. Section 56 provides that the Central Government shall notify Guidelines for the purpose of assessing the extent of specified disability in a person.
11. The Central Government in exercise of the powers conferred by Sub-section (1) and (2) of Section 100 of the Disabilities Act 2016 has made the Rules called "The Rights of Persons with Disabilities Rules 2017". Rule 18 thereof pertains to the issuance of certificate of disabilities, which inter alia provides that on the receipt of application under Rule 17, the Medical Authority or any other notified competent Authority shall verify the information as provided by the applicant and shall assess the disabilities in terms of the relevant Page 11 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Guidelines issued by the Central Government and after satisfying himself that the applicant is a person with disability, issue a certificate of disability in his favour in Form-V, VI and VII, as the case may be. Form-V appended to the said Rules prescribes the certificate of disabilities in cases of amputation or complete permanent paralysis of limbs or dwarfism and in case of blindness. Form-VI prescribes the certificate of disabilities in case of multiple disabilities and Form-VII prescribes the certificate of disabilities in case other than those mentioned in Forms-V and VI.
12. The Government of Gujarat has enacted the Act of 2007 to make special provision for Regulation of admission in the Professional Medical and Educational Colleges and Institutions in the State and fixation of fees in such colleges or institutions and for the matters connected therewith or incidental thereto. The Government of Gujarat has also, in exercise of powers conferred by Sub-section (1) of Section 20 read with Section 4 of the Act of Page 12 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT 2007, made the Rules called the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Course) Rules 2017 (hereinafter referred to as "the Rules of 2017"), to regulate admission to the first year in the Professional Medical Educational Courses. The Rule 4 of the said Rules as amended from time to time provides for the eligibility criteria of admission. Rule 6 thereof pertaining to the Reservation for Physically Disabled, as amended by the Government of Gujarat in Health and Family Welfare Department and published vide the Notification dated 4.5.2018, being relevant is produced as under:-
"5. In the said rules, for rule 6, the following shall be substituted, namely:
6. Reservation for Physically Disable:
Five per cent of the available seats in Government and Grantinaid 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 Page 13 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT 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."
13. It may also be noted that the Indian Medical Council Act 1956 was enacted to provide for the reconstitution of the Medical Council of India and the maintenance of medical register for India and for the matters connected therewith. By the Act 32 of 2010, the Indian Medical Council (Amendment) Act 2010 came into force, which provided inter alia that the Medical Council shall stand superseded and shall be reconstituted and that until a new Council is constituted in accordance with Section 3, the Board of Governors shall exercise the powers and perform the functions of the Council under the Act. The Board of Governors in supersession of Medical Council of India with the previous sanction of the Central Government, in exercise of the powers conferred by Section 33 of the Page 14 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Indian Medical Council Act 1956 has made the Regulations called "Graduate Medical Education Regulations (Amendment) 2019" (hereinafter referred to as "the Regulations of 2019") to further amend the "Graduate Medical Education Regulations 1997". By the said amended Regulations of 2019, the Appendix H contained in the Regulations of Graduate Medical Education 1997, pertaining to the Guidelines regarding admission of students with "specified disabilities" under the Rights of Persons with Disabilities Act 2016 with respect to admission in MBBS, has been substituted with Appendix H-1. The Notification dated 13.5.2019 publishing the said Amended Regulations of 2019 is produced by the petitioner along with the petition as Annexure-O.
14. The learned Sr. Advocates appearing for the parties made lengthy submissions. The crux of the arguments made by the learned Sr. Advocate Mr. S.I. Nanavati for the petitioner is that the Body of Experts i.e. the Medical Board and Medical Appellate Board constituted by the State Page 15 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Government for the purpose of assessing the extent of disabilities and suitability of the candidate for undertaking the medical course have travelled beyond the Guidelines as contained in Appendix-H-1 to the said Regulations of 2019 for declaring the petitioner not eligible for medical course. According to Mr.Nanavati, there were discrepancies in the certificate dated 3.9.2015 obtained by the petitioner under the Disabilities Act, in the report dated 25.6.2019 of the Medical Board and in the report dated 3.7.2019, as regards the Diagnosis of the disability, though all have recorded the extent of disability to be 55%. The Medical Appellate Board also assessed the disability to the extent of 55%, however, without assigning any reason whatsoever held the petitioner not eligible for the medical course. He further submitted that neither the report of the Medical Board dated 25.6.2019, nor the report of the Medical Appellate Board dated 3.7.2019 was even furnished to the petitioner before declaring him not eligible for the medical course on 6.7.2019 while notifying the Page 16 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT status of persons with disability applicants as per Annexure-A. He further submitted that the asterisk (*) mark mentioned below the "specified disability" in respect of the locomotor disability could not be made applicable to the petitioner's case for declaring him ineligible for the medical course. According to him, the person with 40% to 80% disability was eligible for availing admission under the reserved category for the persons with specified disability, and it was only if the disability was more than 80%, the candidate would not be eligible for medical course as per the said Appendix-H-1. In the instant case, the disability of the petitioner being within the benchmark disability of 40% to 80%, the Body of Experts could not have held the petitioner ineligible for the medical course.
15. Lastly he submitted that Medical Appellate Board had not assigned any reason in support of their findings, and the same was sought to be explained by the respondent No.2 in the further affidavit filed by the Member Secretary of the Page 17 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT respondent Committee, who was not even part of the Medical Appellate Board, and even otherwise the decision taken by the Statutory Functionary cannot be supplemented by the fresh reasons in the shape of affidavit or otherwise, as held by the Supreme Court in case of Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., reported in AIR 1978 SC 851. Mr. Nanavati has also placed heavy reliance on the decisions of the Supreme Court in case of Purswani Ashutosh Vs. The Union of India, reported in (2018) SCC Online SC 1717 and also in case of Ganeshbhai Viththalbhai Baraiya and Anr. Vs. The State of Gujarat and Ors., in SLP(C) No.25757 of 2018 decided on 22nd October 2018 to submit that statutory provisions have to prevail over the recommendations made by the Committee.
16. The learned Sr. Advocate Ms.Manisha Shah for the respondents, however, placing heavy reliance on the reports of the Body of Experts i.e. Medical Board and Medical Appellate Board submitted that as per the expert's opinions the petitioner had Page 18 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT locomotor disability namely Bilateral Radio Ulnar Synostosis, and the same was to the extent of 55%, and that the scope of judicial review on the findings of an Expert is extremely limited. In this regard, she has relied upon the decision of the Supreme Court in case of Union of India and Anr. Vs. Talwinder Singh, reported in AIR 2012 SC 2725, in case of Union of India and Ors. Vs. Jujhar Singh, reported in (2011) 7 SCC 735 and in case of Secretary, Ministry of Defence and Ors. Vs. Damodaran A. V. (Dead) Thr. LRs and Ors., reported in AIR 2009 SC (Supp.) 2751. Pressing into service the further affidavit filed on behalf of the respondent Admission Committee, she submitted that the petitioner suffers from the disability other than that specified in Appendix H-1, and the said disability impairs the ability of his hands leading to impossibility of their pronation and supination as noticed by the Experts, which renders him ineligible for the admission for the medical course as per the Regulations of 1997 as amended in 2019. Distinguishing the decisions in case of Purswani Ashutosh Vs. The Union of India Page 19 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT (supra) and Ganeshbhai Viththalbhai Baraiya and Anr. (supra), relied upon by the learned Sr. Advocate Mr.Nanavati, Ms.Shah submitted that in the said cases, the Committee of MCI, who had opined about the disability for the concerned petitioners, did not have the statutory force at the relevant time when the said cases were decided, whereas now Regulations of 1997 have been amended vide the Notification dated 13.5.2019 and as per the substituted Appendix H- 1, the petitioner was not found to be eligible by the Medical Appellate Board constituted for the said purpose by the State Government in view of the Rule 6 of the Rules of 2017, and that the Court may not interfere in the said decision of the body of experts.
17. In the instant case, there are certain undisputed facts, which need to be considered before considering the submissions of the learned Advocates for the parties. It is not disputed that the petitioner was issued the disability certificate in the prescribed Form under the Disabilities Act on 3.9.2015 Page 20 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT (Annexure-C) in which it was certified that the petitioner had locomotor disability; the affected part of the body was upper limb - right; the diagnosis was Radio Ulna Synostosis, and the permanent physical impairment was to the extent of 55%. It is not disputed that the said certificate was in the Form prescribed under the said Disabilities Act and was issued by the notified Medical Authority under the Act. It is also not disputed that in the year 2018 the petitioner after clearing the Higher Secondary Certificate Examinations and the NEET, had applied for the admission in the medical course under the category of physically handicapped, however, he was not found qualified under the said category on the ground that the permanent disability was more than the permitted. It is also not disputed that the petitioner being desirous of pursuing the medical education, had again appeared in the NEET conducted in May 2019 and had secured score of 265 out of 720. He again applied for the admission for the medical course under the category of physically handicapped candidates. It is not disputed that Page 21 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT he was called for examination by the Medical Board of the Civil Hospital at B. J. Medical College, Ahmedabad, where the panel of examiners had examined him on 25.6.2019. As per the report dated 25.6.2019 issued by the said Medical Board, the diagnosis was that the petitioner had Bilateral Radio Ulnar Synostosis with supination restricted and his disability was to the extent of 55%. It was opined that he was not eligible for the medical course. Thereafter, the petitioner was sent to the Medical Appellate Board on 3.7.2019, where he was again examined by the Body of Experts. As per the report of the Medical Appellate Board dated 3.7.2019, the diagnosis was, Bilateral Radio Ulnar Synostosis, and the disability to the extent of 55%. The Appellate Board also opined that he was not eligible for the medical course. It is also not disputed that none of these reports of the Medical Board or Medical Appellate Board was made available to the petitioner before declaring him ineligible for the medical course and it was for the first time on 6.7.2019 he was shown as not eligible for the medical course, in Page 22 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT the list of status of persons with disabilities, (Annexure-A).
18. Now, apart from the fact that neither the report of Medical Board nor of the Medical Appellate Board was ever supplied to the petitioner before declaring him ineligible for the medical course, and apart from the fact that the final report dated 3.7.2019 of the Appellate Board did not contain any reasons for declaring him ineligible, the Court finds material discrepancies in the diagnosis recorded in the said reports and in the certificate issued to the petitioner under the Disabilities Act. All the three certificates/reports state that the petitioner had locomotor disability to the extent of 55% and had Radio Ulnar Synostosis, however, the certificate dated 3.9.2015 issued under the Disabilities Act mentioned that the affected part of the body was upper limb - right, whereas the report dated 25.6.2019 of the Medical Board mentions that the petitioner had Bilateral Radio Ulnar Synostosis with supination restricted, meaning thereby the petitioner had Page 23 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Radio Ulnar Synostosis of both the hands and supination restricted. Again the Medical Appellate Board in its report dated 3.7.2019 though mentions Bilateral Radio Ulnar Synostosis, it does not state that supination was restricted, rather it does not contain any reason as to how and why the petitioner was ineligible. The very fact that he is suffering from Radio Ulnar Synostosis implies that he is not normal and has the locomotor disability but such diagnosis itself would not make him ineligible for the admission in the medical course. On the contrary, his such disability would entitle him to get the admission under the reserved category for disabled persons. In the opinion of the Court, when the report or opinion of the Medical Appellate Board is considered as final and is heavily relied upon for the purpose considering the suitability or eligibility of a student whether he could undertake the medical course or not, it would be incumbent on the part of the Experts to mention in the report not only the exact diagnosis and the extent of specified disability, but also the reasons for holding the Page 24 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT candidate ineligible for the medical course, more particularly when the candidate is falling within the benchmark disability as per the Guidelines of the MCI Regulations.
19. Though the Medical Board has stated that the supination was restricted in the case of petitioner, the Medical Appellate Board is absolutely silent on the supination or pronation. Such inconsistency or discrepancy also assumes significance when the said reports of the Expert Body do not tally with the certificate issued by the notified authority under the Disabilities Act and when as per the Guidelines contained in Appendix H-1 of the MCI Regulations require the certificate to be issued by the notified authority under the Disability Rules. Ms.Shah has cursorily relied upon some unsigned loose sheets of Sheth V. S. General Hospital, School of Physiotherapy, however, there is nothing to suggest that the said loose sheets of V. S. Hospital were part of report of the Medical Board or Medical Appellate Board of B. J. Medical, Civil Hospital, where the Page 25 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT petitioner was examined.
20. Though the learned Advocate Ms. Shah tried to justify the decision of the Medical Appellate Board relying upon the further affidavit-in- reply filed by the Member Secretary of the respondent Committee by submitting that the Body of Experts in the examination reports has reasoned the petitioner's disability, because of the impossibility of pronation and supination of the affected limb, the said submission can not be accepted. The Court is at a loss to understand as to how an affidavit filed by the Member Secretary of the respondent Committee, who was not the Member of the Medical Board or Medical Appellate Board, could be relied upon for the purpose of explaining the report dated 3.7.2019 of the Appellate Board, and more particularly when there is not a whisper in the said report that the disability was because of impossibility of pronation and supination of the affected limb. There is also nothing to suggest in the said report that the petitioner owing to his disability, though may have muscle power, Page 26 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT due to restriction of forearm as a primary impairment, the same would suffer from a mechanical disadvantage to the muscles of wrist and hand that makes the hand functions difficult, as stated in the said affidavit by the Member Secretary of the respondent Committee. In this regard, the learned Sr. Advocate Mr.Nanavati has rightly placed reliance on the decision of the Supreme Court in case of Mohinder Singh Gill and Anr. (supra), wherein it has been held inter alia that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The public orders made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer, as to what he meant or what was there in his mind or what he intended to do. Otherwise an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out.
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21. In the instant case also, the Medical Appellate Board having been constituted by the State Government in view of Rule 6 of the Rules of 2017 (Annexure-N) for the purpose of examining whether the person has the benchmark disabilities in accordance with the provisions contained in the Disabilities Act as provided by the MCI and for the purpose of his suitability for undertaking the course, such authority i.e. the Medical Board and the Appellate Board, as the case may be, is bound to give reasons in support of its opinion/report for declaring the candidate not suitable or ineligible for the medical course, and such report also must be made available immediately to the concerned candidate at the time of publishing the status of the persons with disability, who have applied for admission in the reserved category.
22. It is very pertinent to note that Medical course is one of the most coveted professional courses, and no authority, may it be a body of experts, can disqualify or declare any student ineligible for the medical course by a stroke of Page 28 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT pen, without assigning any reason, more particularly when he is seeking admission from the reserved seats for the disabled persons, and meets with the requirement of benchmark disability. Any casual approach in the assessment of disability or in considering the suitability of a student to pursue Medical course, may ruin the career of the student. Therefore, the report of the Medical Appellate Board dated 3.7.2019, which does not contain any reason whatsoever, much less special reason in support of their decision to declare the petitioner not eligible for the medical course deserves to be set aside.
23. Now, let us examine the said report of the Appellate Board in juxtaposition with the Appendix H-1, to see whether the said report is in consonance with the Guidelines contained in Appendix H-1 of the Regulations of 1997 as amended in 2019. The said Appendix H-1, which is part of the Notification dated 13.5.2019 (Annexure-O) pertains to the Guidelines regarding admission of students with specified Page 29 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT disabilities under the Disabilities Act with respect to admission in MBBS course. The "specified disabilities" have been specified under the Disabilities Act in the Schedule appended to the Act. The said specified disabilities mentioned in the said Schedule and the specified disabilities mentioned in the Appendix H-1 are more or less the same so far as locomotor disability is concerned. It has been mentioned in the said Appendix H-1 that the certificate of disabilities shall be issued in accordance with the Disabilities Rules 2017 as notified on 15.6.2017, and that the extent of "specified disability" in a person shall be assessed in accordance with the Guidelines for the purpose of assessing the extent of specified disability in a person included under the Disabilities Act and notified in the Gazette of India by Ministry of Social Justice and Empowerment on 4th January 2018. It has been further mentioned that the minimum degree of disabilities should be 40% benchmark disability in order to be eligible for availing reservation for persons with specified disability. The Chart Page 30 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT contained in the said Appendix H-1, has the columns for the "Types of disabilities", "specified disability" and "Disability range". The "Disability range" has been further classified under three heads i.e. (1) Eligible for medical course, not eligible for person with disability quota; (2) Eligible for medical course, Eligible for person with disability quota; and (3) Not Eligible for Medical Course. From the said Chart it emerges that the person with less than 40% disability, though would be eligible for medical course, would not be eligible for PWD quota. Person with 40% to 80% disability would eligible for medical course and would be eligible for PWD quota, and that the person with more than 80% disability is not eligible for medical course. Meaning thereby, the person claiming admission under the category reserved for persons with specified disability should have benchmark disability between 40% to 80%, of course, as mentioned therein, the persons with more than 80% may also be allowed on case to case basis.
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24. The bone of contention raised by Ms.Shah for the respondent is that out of the specified disabilities mentioned against the locomotor disability, the petitioner's case would fall under the specified disability (f) i.e. others such as amputation, poliomyelitis etc., and that the third asterisk (***) would be applicable to such cases, which state that "Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course". According to her, in the instant case, the range of motion of the petitioner being restricted, the petitioner could not be said to be suitable or eligible for the medical course. It is difficult to accept the said submission of Ms.Shah. The person with locomotor disability is bound to have restriction in the movement of the limbs affected. Restriction in movement of forearm can not be equated with the restriction in motion. The third footnote with three asterisk marks would be applicable to the person with specified disability like amputation, poliomyslitis etc., in which case the range of motion may be an Page 32 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT essential factor for considering the eligibility of the candidate for the medical course. In the opinion of the Court, the reliance placed on the said footnote for the purpose of holding the petitioner ineligible is totally misplaced, however, even if it is assumed that petitioner's case would fall in the special disability (f) i.e. others such as amputation, poliomyelitis etc., there is nothing on record to suggest that the petitioner did not have permissible range of motion as contemplated in the said footnote. The Court is totally at loss to understand as on what basis the case of the petitioner has been discarded for the purpose of getting admission in the medical course, when his disability has been assessed by the Boards/Authorities to the extent of 55%, which is within the permissible limits of benchmark disabilities for the purpose of availing admission under the reserved category of the persons with specified disabilities. The Court, therefore, has no hesitation in holding that the report dated 3.7.2019 of the Medical Appellate Board could not be said to be in consonance with the said Page 33 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT Guidelines contained in Appendix H-1 of the Regulations of 1997 as amended in 2019.
25. Though Mr.Nanavati has relied upon the decision of the Supreme Court in case of Purswani Ashutosh Vs. The Union of India (supra) and in case of Ganeshbhai Viththalbhai Baraiya and Anr. (supra) to submit that the report of the Medical Board can not override the statutory provisions contained in the said Act, in the opinion of the Court, the said judgements are distinguishable on facts, inasmuch as it appears that in the said cases, the reports were given by the Committee of MCI, which did not have the statutory force at the relevant time, and therefore, the Supreme Court had held that the Medical Education Regulations framed under Section 33 of the Medical Council Act have statutory force, and that the view of the Committee with regard to the suitability of the petitioner for the MBBS course cannot override the Medical Education Regulations. Now, since the Regulations of Graduate Medical Education 1997 have been amended by the Notification dated Page 34 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT 13.5.2019 by incorporating Appendix H-1, and the Government of Gujarat having amended the Rules of 2017 by substituting Rule 6 empowering the Medical Board to assess the disability and suitability of the candidate for undertaking the course, the petitioner's case would be governed by the said Rules and Regulations. Nonetheless, the Court having found that the report/opinion of the Medical Appellate Board dated 3.7.2019 deserves to be set aside as it does not contain any reason for holding the petitioner ineligible for the medical course, and is even otherwise not in consonance with the Guidelines contained in Appendix H-1 of the Regulations of 1997 as amended in 2019, the same is set aside, to the extent it opines that the petitioner is ineligible for the medical course. So far as the disability is concerned, all the three authorities i.e. the Notified Authority under the Disabilities Act, the Medical Board and the Medical Appellate Board have assessed locomotor disability of the petitioner to the extent of 55% and the said disability is within the benchmark disability i.e. between 40% to 80% as Page 35 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT per the said Appendix H-1. The petitioner, therefore, would be entitled to get the admission in the medical course under the category reserved for the persons with disabilities, as per his merits.
26. Before parting, it may be noted that as per Section 16 of the Disabilities Act, the appropriate Government, Local Authorities and the Educational Institutions have to make endeavour to provide inclusive education to the children with disabilities. The authorities should take all measures to enhance the object of the said benevolent legislation by interpreting the provisions of the relevant Rules and Regulations to ensure that the persons with disabilities enjoy the right to equality and the life with dignity.
27. In that view of the matter the report dated 3.7.2019 of the Medical Appellate Board to the extent it holds that the petitioner is not eligible for the medical course is quashed and set aside. The respondent authorities are directed to give admission to the petitioner Page 36 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019 C/SCA/11989/2019 CAV JUDGMENT under the category reserved for the persons with disabilities forthwith, if otherwise he is entitled as per the merit list. The petition stands allowed accordingly.
Sd/-
(BELA M. TRIVEDI, J) FURTHER ORDER:
1. The learned Sr. Advocate Ms.Manisha Lavkumar Shah for the respondent Nos.1 and 2 has requested to stay the operation of the order with a view to challenge the same before the higher forum and she states that one seat shall be kept vacant from the quota of the persons with disability.
2. In view of the above, the operation of the order is stayed up to 31.7.2019.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 37 of 37 Downloaded on : Wed Jul 24 02:27:29 IST 2019