Madras High Court
M.Rosy vs The Secretary To Government on 1 August, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.08.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.18641 and 18642 of 2012 and M.P.Nos.1 and 1 of 2012 M.Rosy .. Petitioner in W.P.No.18641 of 2012 V.Dhanasekaran .. Petitioner in W.P.No.18642 of 2012 Vs. 1.The Secretary to Government, Department of Health, Fort St.George, Secretariat, Chennai-600 009. 2.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3.The Secretary, Medical Council of India, Dwarkar Phase-I, New Delhi. .. Respondents in both writ petitions Both these writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus directing the second respondent to allot one MBBS seat to the petitioners based on the marks obtained / rank list under the special category (Orthopedically Physically Disabled) for the academic year 2012-2013 subject to verification of medical records and medical examination to the petitioners. For Petitioners : Mr.R.Prabhakaran For Respondents : Mr.A.Navaneetha Krishnan, Advocate General Assisted by Mr.V.Jayaprakash Narayanan, Spl.G.P. For RR1 and 2 Mr. V.P.Raman for R-3 - - - - COMMON ORDER
Both writ petitions were filed for the purpose of directing the second respondent Secretary, Selection Committee to allot seats to the petitioners in MBBS curse bsed on the marks obtained / rank list under the special category (Orthopedically Physically Disabled) for the academic year 2012-2013 subject to the verification of medical records and medical examination to the petitioners.
2.When these writ petitions came up on 19.7.2012, notice on admission was ordered. This court directed the learned Special Government Pleader Mr.V.Jayaprakash Narayanan to get instructions from the respondents. Accordingly, in both writ petitions, counter affidavits dated 24.07.2012 have been filed by first and second respondents.
3.The petitioners were aspirants for joining MBBS course. They submitted applications for getting admission for the academic year 2012-2013 with the respondents. The prospectus for admission to MBBS / BDS course for 2012-2013 published by the Selection committee as per the authorization given by the State Government in respect of seats reserved for Orthopedically Physically Disabled found in paragraph 42(iv) under Special Categories reads as follows :
"(iv)Seats Reserved for Orthopedically Physically Disabled :
3% of the total number of seats available in Government Medical / Dental Institutions are reserved for the Orthopedically Physically disabled candidates. In the first instance in the reservation of seats, candidates with disability of lower limbs between 50% to 70% shall be considered and in case candidates are not available in that category then candidates with disability of lower limbs between 40% to 50% may be considered.
The other conditions of eligibility for admission into MBBS / BDS Course will be applicable as in the case of the general category.
The candidates are required to produce a certificate from the District Medical Board of the area concerned constituted for the purpose assessing the nature and the extent of disability in the format prescribed in the Annexures IV(a) &(b).
The Certificate must have been obtained within three months prior to submitting the application for seeking admission under this category. If the Certificate has been obtained earlier, the application will be rejected.
The Medical Certificate issued by District Medical Board of the area concerned for this purpose is subject to the confirmation by the Expert Committee constituted by the Director of Medical Education at the time of counselling.
The Candidate seeking admission under this category should produce a full size photograph exhibiting the deformity.
Note: 1.The selected candidates for MBBS / BDS course will be required to undergo second Medical Examination by a Medical Board constituted for the purpose by Director of Medical Education to ascertain and confirm the nature and extent of physical disability.
2.Candidates with any other disability other than the locomotory disability of the lower limb will not be considered for admission into MBBS/BDS Course under this Special Category. Such applications will be summarily rejected without any intimation to the candidate.
3.The decision of the Director of Medical Education in this regard will be final."
4.It also provides for a medical certificate to be obtained under Annexure IV-A by the District Medical Board in respect of locomotory disability of the lower limb and that it should be between 40% and 70%. Under Annexure IV-B, a certificate of locomotory disability has to be in the following form :
ANNEXURE IV B. CERTIFICATE OF LOCOMOTORY DISABILITY (For Admission to MBBS / BDS Courses) Certificate No. ............... Date ................
This is to certify that ........................... aged ............. Years, Son / Daughter of Thiru ....................... residing at ................... is suffering from ............. and has permanent Physical Impairment of Left / Right / Both Lower Limbs.
He / She is Loco motor disabled and has the percentage of ............. (in figure) .................. (in words) disability of Lower Limbs.
Upper Limbs Right / Left / Both are without any deformity and Functionally Normal.
He/She is eligible / NOT eligible for admission to MBBS / BDS Courses as per the MCI/ DCI guidelines.
Signature with Name& Seal Signature with Name& Seal Signature with Name&Seal (Chairman of Board) (Member of Board) (Member of Board)
Note : 1)The Selected candidates have to undergo a second Medical Examination by a Medical Board constituted for the purpose by the Director of Medical Education to ascertain and confirm the nature and extent of physical disability.
2.Candidates with any other disability other than the locomotory disability of the lower limb will not be considered for admission under this category.
3.The decision of the Director of Medical Education in this regard will be final."
5.But, however, when they were not selected under the quota meant for Orthopedically Physically disabled persons, they have come forward to file the present writ petitions.
6.The facts in the writ petitions as well as the stand taken by the contesting respondents were as follows :
W.P.No.18641 of 2012 (M.Rosy) :
The petitioner claims that she had applied for admission to MBBS course under Special category, i.e., Orthopedically Physically disabled, for the year 2011. As per the second respondent's call letter, her cumulative marks obtained for counseling procedure was 182 and her ranking was 10055 for the year 2011. She belonged to most backward class. Her community-wise rank was 2406. She had attended the counseling on 30.6.2011. But, during the counseling her application was rejected by fixing her permanent disability of lower limb at 70%. She was informed that she was not entitled to secure a medical seat. She had pleaded with them that as per Annexure IV-A, a person with locomotor disability of lower limb between 40% and 70% is entitled for admission. Therefore, she sought for a seat. But however, it was refused. It was stated that she was issued with disability certificate by the District Differently Abled Welfare officer, Krishnagiri assessing her disability at 70%. She was also examined by the District Medical Board, Krishnagiri and got the medical certificate assessing her permanent disability at 70%. As per the medical certificate issued to her, she did not have any upper limb disability and that she was suffering with locomotory lower limb disability that too to an extent of permanent disability of 70%. Therefore, she is entitled for selection under the Orthopedically Physically disabled special category.
7.Subsequent to the rejection, she gave a representation on 19.12.2011 to the authorities and thereafter sent reminders. By that time, the academic year 2011 came to an end. An announcement for counseling for MBBS course for 2012 was published. She again applied for admission. She was given a call letter. As per the counseling procedure, her ranking was 13177 and under the most backward class category, her rank was 3221. She was invited for counseling on 5.7.2012. She had sufficient mark and was eligible to get a medical seat under the differently abled category. She had attended the counseling. But, however she was informed that she was not eligible to get a seat under the said category. As per Annexure IV-A of the prospectus, a person with locomotor disability of the lower limb between 40% and 70% is entitled for admission. But, however anticipating that the respondents will reject her to allot a seat, she has filed the present writ petition.
8.In the counter affidavit filed by the respondents, it was stated that the petitioner had secured 182 marks in aggregate. In the general merit list, she was placed in 13177th position. She had applied under the special category. Therefore, she was referred to the Special Medical Board constituted by the Director of Medical Education on 5.7.2012 as per paragraph 42(iv) of the prospectus. It was also agreed that 3% of the total number of seats available in the Government, Self financing medical institutions are reserved for the physically disabled candidates. The reservation of seats in the first instance will be granted to persons with disability of lower limbs between 50% and 70% and in case no candidates are available in that category, the candidates with disabilities of lower limbs between 40% and 50% will be considered. The other conditions for admission for the MBBS course will be applicable as in the case of general category. The candidates were required to produce a certificate from the District Medical Board of the area concerned for the purpose of assessing the nature and the extent of disability as prescribed in Annexure-III. But as per paragraph 42(iv), the medical certificate issued by the District Medical Board in that area concerned is subject to the confirmation of the Special Medical Board constituted by the Director of Medical Education at the time of counseling. The candidates were also required to produce a full size photograph exhibiting the deformity in support of their claim under the special category physically handicapped. The candidates with any other disability other than the locomotor disability of the lower limb will not be considered for admission into MBBS course under the special category. The decision of the Director of Medical Education in this regard will be final. Therefore, the procedure under paragraph 42 of the prospectus was strictly followed.
9.It was further stated that the special medical board had examined the petitioner and opined that she was showing 80% of disability and as such she was not entitled to seek for admission under the special category. Hence she was not considered for admission to MBBS course for 2012-2013 session. The percentage of deformity had ceen clearly written in words as 80% base don the guidelines and gazette notification issued by the Ministry of Social Justice and Empowerment, Government of India, dated 13.6.2001. As per the said guidelines, the percentage of deformity in lower limb was evaluated that (3).Above Knee up to upper 1/3 of thigh 85%; (4) Above Knee up to lower 1/3 of thigh 80%. As the percentage of the deformity was 80%, she was not eligible for admission. Based upon the recommendation of the Special Medical Board, her case was rejected. It was also stated that as per the MCI norms, the Special Medical Board will have to be constituted with one Orthopedician (MS Ortho), one Neurologist and one Medical Officer of Physical Medicine (MD Physical Medicine). The disability of the lower limb may be due to Ortho or Neurological disorder. The District Board will only certify the percentage of the defect. But the Special Medical Board will assess the defect with established guidelines issued and also find out whether the disease is progressive or non progressive and confirm the percentage of deformity and as to whether the candidate is fit or unfit.
10.It was further stated that call letters were sent to 62 candidates. 59 candidates had attended the counseling, out of which 43 candidates were selected and 16 candidates were declared unfit including the petitioner. After filling up those seats, the remaining seats in the physically handicapped quota were added to general pool and counseling was conducted and that students were admitted to different Government Medical Colleges. As on date, there was no vacancy in any of the colleges.
W.P.No.18642 of 2012 (V.Dhanasekaran) :
11.The petitioner was suffering from "Kyphoscoliosis". He had completed his higher secondary course during March, 2004. He had applied for the medicine through the counseling conducted by the second respondent under the special category (Orthopedically Physically disabled). As per the cumulative mark obtained, his ranking was 7854. He belonged to backward class. The petitioner went for counseling on 5.7.2012. But, however his case was rejected on the ground that he was not disabled with locomotor disability with lower limb. The second respondent had neglected his plea and ignored that he was suffering with locomotor disability of lower limb. The petitioner was examined by the District Medical Board and was issued with the medical certificate for Orthopedically physically disabled. The medical certificate issued by the Board clearly informed that he was suffering from permanent disability of lower limbs as 50% and that he fulfilled the standard which can be considered for admission to undergo studies in medicine. It was also stated that without prejudice to the submission that if he does not possess disability in upper limb, it should not be applied as an embargo to selection as his hands function with normal limits without any aid. Any embargo or rejection on the basis of the disability of upper limb was unconstitutional and violative of fundamental rights and it was against the mandate of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is under these circumstances, the writ petition came to be filed.
12.In the counter affidavit filed by the respondents 1 and 2, it was stated that in the general merit list, the petitioner was placed in 7854th position. He was referred to the Special Medical Board constituted by the Director of Medical Education on the date of counseling as per paragraph 42(iv) of the prospectus. It was stated that the District Board was constituted by the Joint Director of the concerned District. One of its members will be a specialist depending on the deformity. The Board will only certify whether the candidate was physically handicapped. As per the MCI norms, the Special Medical Board will be constituted as already referred to above. The District Board will only certify the percentage of defect. But the Special Medical Board will assess the defect with established guidelines. Therefore, the petitioner's deformity was 40% and has only Kyplo Scoliocis and no lower limb disability. This assessment was based upon the guidelines issued by the Ministry of Social Justice and Empowerment. Hence there is no case for entertaining the writ petition.
13.In the light of these facts, the counsel for the petitioners Mr.R.Prabhakaran contended that the admission authority cannot prescribe anything in the prospectus which is contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act itself defines as to what meant by disability. Under Section 2(i), the disability includes locomotor disability. Section 2(t) defines "person with disability" as a person suffering from not less than forty per cent of any disability as certified by a medical authority. He contended that the percentage of disability prescribed by the MCI for disabled candidates for admission to PG Medicine courses came to be considered by the Delhi High Court in Dr.Raman Khanna Vs. University of Delhi in C.W.P.No.2670 of 2003 and connected writ petitions. The Delhi High Court by its judgment dated 11.08.2003 held that the requirement of suffering of disability of 40% and above is the statutory imperative has to be complied with. The MCI may conceive and lay down a system whereby persons with more aggravated affliction will be given precedence over others. Conceptually, this can be achieved by making three brackets of 70% to 60%, 60% to 50% and 50% to 40% disability. The Delhi High Court directed the council to have a fresh look.
14.The issue was considered by the MCI in its meeting held on 20.10.2003. The general body of the council came to the conclusion that for admission of medicine course, the percentage of locomotory disability of lower limbs should be 50% to 70% so as to ensure the benefit of reservation actually reaches the deserving candidates. The council also considered the earlier guidelines dated 5.7.2001 and held as follows :
"The Committee decided that the stipulation of locomotory disability of lower limbs between 40% to 60% be amended / modified to 50% to 70% in place or 40% to 60%. The Committee decided that it is only person with locomotary disability of lower limbs between 50% to 70% i.e., minimum of 50% and maximum of 70% either with regard to one lower limb of the body, should be allowed the benefit of reservation under the Disability Act for admission in the medicine courses. This condition shall apply to admission in all medicine courses for reserved seats."
15.The council further directed that in addition to any other prior valid medical certificates, the candidate seeking the benefit of reservation should appear before the medical board specially constituted for this purpose. This resolution was communication to all admission authorities. The council also considered the other issues, i.e., it does not find itself in a position to accept permissibility of any reservation for persons with locomotory disability of upper limbs and had decided to make reservation available only to persons with locomotory disabilities with lower limbs. They had also considered the observation of the Delhi High Court and could not agree to provide slabs within the degree of locomotry disability of lower limb between 50% and 70%, i.e. one category of 50% to 60%, another 50% to 70%, then to apply preference among them. Therefore, the MCI had resolved that persons with locomotory disability with lower limbs between 50% and 70% alone will be eligible for consideration for admission in undergraduate and postgraduate medicine courses.
16.It was also contended that a division bench of the Orissa High Court also gave a judgment in W.P.Nos.7877 and 7878 of 2004 in D.S.Rashmi Ranjan Vs. Chairman, J.E.E. and others, dated 2.2.2005. The court had upheld the decision of the Medical Council to consider only those candidates for admission to medical courses having locomotory disability of lower limbs upto 70% disability and set aside the council decision in restricting the eligibility to those with 50% and above disability. But it was held that the MCI is competent to lay down certain norms. Further, the Orissa high Court had held as follows :
"The observations and decisions of the Medical Council that feeling and sensation are important for a clinical diagnosis and a Medical Practitioner or a student of Medical Course is to elicit sign during clinical examination and finer movements are desired for conduct of surgical procedure and, as such, persons with maximum of 70% of Locomotor Disability of the Lower Limbs only and with no other disability are eligible for admission to M.B.B.S course therefore cannot be faulted.'
17.The MCI subsequently had notified on 25.3.2009 the eligibility criteria for admission. It had earlier issued notifications dated 23.12.2006 and 18.01.2007. Therefore, it was contended that a candidate with locomotory disability of lower limb of 50% to 70% shall be given first preference and if the seats remained unfilled, the candidates having locomotory disability of lower limb between 40% to 50% should be given the seat. Therefore, it was argued that rejection of the petitioner in W.P.No.18641 of 2012 was arbitrary. Despite assessing her disability at 70% , the second respondent had arbitrarily rejected her application. It was contended that since the Special Medical board constituted by the Director of Medical Education took a different view than the one certificate issued by the District Medical Board, the petitioner should have been given an opportunity. Inasmuch as no opportunity was given to take a different view, the rejection was illegal.
18.In respect of the second writ petition, it was contended that the seats specially reserved for differently abled cannot be filled by the candidates under general quota. Such seat has to be carried forward to the next year. Despite assessing permanent disability of lower limb as 50%, the second respondent had arbitrarily rejected his application.
19.The counsel for the petitioners on the basis of these submissions referred to a judgment of the Supreme Court in All Kerala Parents Association Vs. State of Kerala reported in 2002 (7) Scale 198 for contending that reservation under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also applies to admission of students in Government institutions as well as educational institutions receiving aid from the Government. Inasmuch as 3% of reservation has been meant for disabled candidates, the respondents cannot transfer the unfilled seats to general category, thereby depriving the petitioners who are genuinely disabled persons.
20.The learned counsel also referred to a judgment of the division bench of this court in The Secretary, Educational Department, Government of Tamil Nadu, Chennai and others Vs. Master J.Rajkumar (Minor) represented by his father and natural guardian D.Joseph, Elagiri reported in (2003) 2 MLJ 420 for contending that rule of reservation of 3% of seats reserved for disabled should be followed and that the provisions of the Disabilities Act is mandatory.
21.The learned counsel also referred to a division bench judgment of this court in P.Rajaprabaharan Vs. The Secretary to Government, Higher Education Department, Chennai and others reported in AIR 2005 MADRAS 346 for contending that prospectus issued by the Director of Medical Education providing candidates with 50% to 70% disability alone will be considered cannot be accepted. Section 2(t) of the Disabilities Act provides for considering the candidates possessing 40% or more disability.
22.He further referred to a judgment of the division bench of this court in Prof.I.Elangovan Vs. Government of Tamil Nadu reported in (2008) 3 MLJ 481 for contending that the Government is duty bound to provide reservation of not less 3% in every establishment under Section 33 of the Act.
23.The learned counsel further referred to a division bench judgment of the Gujarat High Court in Danubhai Unadbhai Mori Vs. State of Gujarat through Secretary reported in 2011 INDLAW GUJ 474 for contending that Rule 5 governing admission for PG Degree and Diploma Medical Courses insofar as it restricts reservation of 3% seats to locomotory disabled candidates having locomotory disability of lower limb between 50% to 70% upper limbs being normal is ultra vires, contrary and would amount to altering the definitions in the Disabilities Act as defined under Section 2(t) of the Act.
24.The learned counsel further referred to a division bench judgment of the Gujarat High Court in Dr.Deval R.Mehta Vs. Union of India reported in 2010 INDLAW GUJ 428 for the same purpose.
25.Lastly, he referred to a judgment of the Supreme Court in Government of India through Secretary and another Vs. Ravi Prakash Gupta and another reported in (2010) 7 SCC 626 for contending that reservation under Section 33 of the Disabilities Act is not depending upon the identification and that a duty is case upon the appropriate Government to make appointments in the number of posts reserved for the categories mentioned therein.
26.Per contra, it was argued by the respondents that the petitioners are bound by the prospectus issued under which they made applications. The prospectus has been issued in conformity with the MCI directives in this regard. Therefore, the petitioners having bound by the prospectus cannot turn back and challenge the conditions stipulated therein. Secondly, the higher medical board constituted by the superior body is entitled to identify the persons in accordance with the requirements for MBBS course for which petitioners had applied. The provisions of the Disabilities Act in relation to percentage of disability cannot be pressed into service.
27.Reference was made to a judgment of this court in K.Kuralarasan Vs. The Secretary to Government, Education Department, Secretariat, Chennai and others in W.P.No.13809 of 2009, dated 23.07.2009, wherein this court in paragraph 10 had observed as follows :
"10.....The prospectus issued by the second respondent for M.B.B.S./B.D.S admissions, for the academic year 2009-2010, is in accordance with the prescribed norms of the Medical Council of India. Since the prospectus prescribes that 3% of the total number of seats for the medical courses would be reserved for candidates with disability of lower limbs, between 40% and 70%, the petitioner would not be eligible for being admitted in the M.B.B.S/B.D.S course since his disability is assessed to be 25% only. The assessment of the physical disability of the petitioner is by the Expert Committee constituted by the Director of Medical Education. Even though the District Medical Board concerned had issued a Certificate stating that the extent of permanent disability of the petitioner is 60% it is subject to the confirmation of the Expert Committee constituted by the Director of Medical Education, at the time of the counselling for admission to the medical courses. Since the prospectus states that the decision of the Director of Medical Education shall be final and as the petitioner has not challenged the assessment of the Expert Committee, on the ground of mala fide or on any other grounds, the petitioner is not entitled to the reliefs prayed for in the writ petition..."
28.Similary, another learned Judge of this court in N.Shobana Vs. The Secretary, Educational Department, Government of Tamil Nadu, St. George Fort, Chennai and others in W.P.(MD)No.6227 of 2009, dated 30.09.2009 in paragraphs 12 and 13 held as follows :
"12.According to me, in so far as the admission to the educational institutions are concerned, they are governed by the prospectus and as per clause 42(iv), candidates with disability of lower limbs between 50% to 70% shall be considered and in case candidates not available in that category, then candidates with disability of lower limbs between 40% to 50% will be considered.
13.It is further made clear in clause 2 of the note appendix that candidates with any other disability other than locomotor disability of the lower limb will not be considered for admission in the M.B.B.S./B.D.S. course under special category. As the petitioner does not have the minimum requirement of disability of the lower limb, she is not eligible to claim reservation under the physically disabled category and hence, the 2nd respondent is justified in not giving any seat to the petitioner."
29.Subsequently, a division bench of this court presided by M.Y.Eqbal, C.J. in Dr.Revathi Vs. The State of Tamil Nadu and others in W.A.No.309 of 2011, dated 27.04.2011 in paragraphs 10 and 11 had observed as follows :
"10......Thus, by agreeing to get herself subjected to assessment by a fresh Medical Board, the appellant is precluded from relying upon any earlier assessment. Admittedly, the Medical Board consists of experts in the field and this Court cannot substitute its opinion in the place of the opinion rendered by the experts.
11.As noticed above, the Medical Board in its report dated 07.9.2010, has certified that the percentage of disability is 75%. In terms of Clause 57 of the Prospectus, which has been noticed by the learned Single Judge, 3% of the total number of seats available for Government Medical/Dental Institutions are reserved for physically disabled candidates (only for locomotory disabilities of lower limbs). The condition further stipulates that the reservation of seats in the first instance is to the candidates with disability of lower limbs between 50% and 70% and in case candidates are not available in that category, then candidates with 40% to 70% locomotory disabilities of the lower limbs will be considered. Unfortunately, the appellant suffers disability in both her upper limbs as well as lower limbs and the Medical Board has assessed her disability of lower limbs at 51% and disability of the upper limbs at 55% and the total percentage of disability being 75%. Thus, it is clear that the appellant's case cannot be considered in view of the specific embargo contained in Clause 57 of the Prospectus. In fact, Clause 57 of the Prospectus is based on the notification issued by the Medical Council of India in their proceedings, dated 14.7.2003. It is a trite law that the notification issued by the Medical Council of India is binding not only on the respective States and the Selection Committees, but also candidates who are applying for the course of study. The appellant, admittedly, accepted the prospectus and applied for the Course and cannot now turn around and state that the condition in the prospectus has to be either ignored or relaxed."
30.Since the petitioners had questioned the wisdom of MCI framing guidelines, it is necessary to refer to a judgment of the Supreme Court in Union of India v. Devendra Kumar Pant reported in (2009) 14 SCC 546, wherein the Supreme Court dealt with the question of promotion and also the impact of Section 47(2) and in paragraphs 31 to 34, the Supreme Court had observed as follows :
"31.It is significant that Section 47(2) does not provide that even if the disability comes in the way of performance of higher duties and functions associated with the promotional post, promotion shall not be denied. Section 47(2) bars promotion being denied to a person on the ground of disability, only if the disability does not affect his capacity to discharge the higher functions of a promotional post.
32. Where the employer stipulates minimum standards for promotion keeping in view the safety, security and efficiency, and if the employee is unable to meet the higher minimum standards on account of any disability or failure to posses the minimum standards, then Section 47(2) will not be attracted, nor can it be pressed into service for seeking promotion. In other words, where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion, merely on the ground of his disability.
33. When invoking or applying the provisions of the Act, it is necessary to keep in view that the intention of the Act is to give a helping hand to persons with disability so that they can lead a self-reliant life with dignity and freedom. But the intention of the Act is not to jeopardise the safety and security of the public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer, nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability. In this case, Office Order No. 4/1990 makes it clear that the minimum medical standards have been fixed taking into account the requirements in the Medical Manual with reference to interest of public safety, interest of the employee himself and fellow employees and in the interest of the administration.
34.If any employee or a group of employees are of the view that a particular minimum medical standard prescribed does not serve the interest of public safety, interest of the employee and fellow employees or the interest of administration, but has been introduced only with the intention of keeping a person with disability from securing the promotional post, it is always open to him or them to give a representation to the employer to review/revise the minimum medical standards. On such representation the employer will refer the issue to a committee of experts to take an appropriate decision, if that was not already done. But once a decision regarding medical standards has been taken by the management bona fide and in the usual course of business on the report/recommendation of an expert committee, the same cannot be found fault with on the ground that it affects the right of a person with disability for promotion." (Emphasis added)
31.If it is seen in the light of the above, the rejection of the case of the petitioners was not on the ground that they are disabled, but on the ground that they failed to fulfill the norms prescribed for considering their case in relation to admission for MBBS course as not been fulfilled. Therefore, the attack that the MCI cannot issue guidelines in relation to admission to MBBS course with persons with disablement cannot be countenanced.
32.The Supreme Court in State Bank of Patiala v. Vinesh Kumar Bhasin reported in (2010) 4 SCC 368 also held that the provisions of the Disabilities Act cannot be pressed into service for seeking any relief or advantage where the complaint relating to discrimination had nothing to do with the disability of persons and in paragraph 29, it was observed as follows :
"29.....The Disabilities Act seeks to provide them a level playing field, by certain affirmative actions so that they can have adequate opportunities in matters of education and employment. The Act also seeks to ensure non-discrimination of persons with disabilities, by reason of their disabilities. But the provisions of the Disabilities Act cannot be pressed into service to seek any relief or advantage where the complaint or grievance relates to an alleged discrimination, which has nothing to do with the disability of the person. Nor do all grievances of persons with disabilities relate to discrimination based on disability."
33.Therefore, the contention that the MCI cannot give directions cannot be found acceptance. The disablement as set out in Section 2(t) is with reference to minimum standards to be applied. But at the same time, Section 32 provides for identification of posts which can be reserved for persons with disabilities. Therefore, it is open to the MCI as well as the State Government to prescribe norms for admission to MBBS course with reference to special requirements. Disqualifying persons who are totally disabled after identification by the committee as well as persons as in the case of the writ petitioner in W.P.No.18641 of 2012 (M.Rosy) with 80 % of disability and prescribing norms for Kyploscoliocis disability and the persons who are coming below norms as in the case of the petitioner in the second writ petition (W.P.No.18642 of 2012 V.Dhanasekaran) cannot be said to be discriminatory and violative of Article 14 of the Constitution.
34.Further procedural safeguards urged by the petitioners that certificates produced by them and obtained from the District Medical authority should be final also does not take into account as the special board was constituted by the State Government in terms of the directives issued by the MCI. In the absence of any malafide alleged against those authorities, this court is not inclined to disturb the findings arrived at by the respondents. In the matter of this nature where the facts are matters of record, the petitioners' asking for further opportunity is not provided under the prospectus issued by the respondents.
35.In the light of the above factual matrix and in the absence of any legal or enforceable right on the part of the petitioners, this court is not inclined to entertain both writ petitions. Accordingly, both writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
vvk To
1.The Secretary to Government, Department of Health, Fort St.George, Secretariat, Chennai-600 009.
2.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-600 010.
3.The Secretary, Medical Council of India, Dwarkar Phase-I, New Delhi