Kerala High Court
Kavya R vs The Medical Counseling Committee on 22 December, 2020
Author: P.V.Asha
Bench: P.V.Asha
WP(C).No.28183 OF 2020(W) 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942
WP(C).No.28183 OF 2020(W)
PETITIONERS:
KAVYA R.
AGED 18 YEARS
HARITHA NAGAR 2ND STREET, KOTTAPADY BYE PASS ROAD,
KODUVAYOOR P.O. PALAKKAD DISTRICT.
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
RESPONDENTS:
1 THE MEDICAL COUNSELING COMMITTEE
REPRESENTED BY ITS DIRECTOR,
DIRECTORATE GENERAL OF HEALTH SERVICES,
MINISTRY OF HEALTH AND FAMILY WELFARE,
NIRMAN BHAVAN, CENTRAL SECRETARIAT,
NEW DELHI 110 001.
2 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM 695 011.
3 THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE,
THIRUVANANTHAPURAM 695 011.
4 THE MEDICAL BOARD,
REPRESENTED BY ITS CHAIRMAN, GOVERNMENT MEDICAL
COLLEGE, THIRUVANANTHAPURAM 695 011.
5 THE DEPUTY SUPERINTENDENT AND CHAIRMAN,
MEDICAL BOARD, MEDICAL COLLEGE HOSPITAL,
THIRUVANANTHAPURAM 695 011.
WP(C).No.28183 OF 2020(W) 2
6 ADDITIONAL PROFESSOR,
DEPARTMENT OF NEUROSURGERY, GOVERNMENT MEDICAL
COLLEGE, THIRUVANANTHAPURAM 695 011.
7 PROFESSOR OF OPHTHALMOLOGY,
REGIONAL INSTITUTE OF OPHTHALMOLOGY, GOVERNMENT
MEDICAL COLLEGE, THIRUVANANTHAPURAM 695 011
R1 BY SRI.JAISHANKAR V.NAIR, CGC
SRGP.SRI.V.MANU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.28183 OF 2020(W) 3
JUDGMENT
Petitioner, who is a person with visual impairment, is aggrieved by the reports and findings of the Disability Board and consequent denial of admission to her in the 5% quota for Persons with Disability for admission to MBBS in the all India quota based on her rank in NEET UG 2020.
2. The petitioner applied for National Eligibility cum Entrance Test [NEET (UG)] claiming special reservation for persons with disability. She secured 72.4478636 percentile in the NEET. As per Ext.P3 memo dated 06.11.2020, she was allotted to Government of Tamil Nadu Medical College, Thiruvarur, in the first round of allotment, for admission to MBBS course in the quota for PwD. Based on the option submitted by the petitioner, in the second round, she was allotted to the Government Medical College, Thiruvananthapuram, as per Ext.P4 memo dated 26.11.2020. As per Ext.P5 proceedings, the petitioner was relieved from the Medical College at Thiruvarur on 01.12.2020. It is stated that she was directed to join the Medical College at Thiruvananthapuram before 08.12.2020. The petitioner submits that she approached the Disability Medical Board of the College- the 4th respondent, since a medical certificate was insisted for joining the College. In Ext.P7 certificate assessing her disability at 30% issued by it on 05.12.2020, it is stated that she is eligible for medical admission as per the MCI gazette WP(C).No.28183 OF 2020(W) 4 notification. On 7.12.2020, the 4th respondent issued Ext.P8 certificate stating that she was having 30% visual disability and is not eligible for PwD quota. On 08.12.2020 when the petitioner reported in the College, she was not allowed to join, based on the certificates Exts.P7 and P8. This Writ Petition is filed challenging Exts.P7 and P8 certificates alleging violation of Graduate Medical Education Amendment Regulations 2019 (Ext.P6) and pointing out that the petitioner is having 40% permanent disability as certified in Ext.P1 by the Standing Disability Board, at District Hospital, Palakkad. Dr. K.P.Satheesan, the learned Senior Counsel for the petitioner, argued that the petitioner was admitted in the Medical College Thiruvarur in Tamil Nadu, without any objection and therefore Exts.P7 and P8 certificates, which are contrary to the provisions in Appendix H, cannot be relied on and therefore the petitioner has to be allowed to join the College.
3. Sri. V.Manu, the learned Senior Government Pleader, made available the report on the medical examination of the petitioner for assessing her visual disability, according to which the assessment was made in accordance with the Right of Persons with Disabilities Act 2016 and the guidelines issued thereunder published in the Gazette of India and that she was found to have visual disability of 30% only without any special assistive device used as low vision aids. It is stated that she was found not eligible under PwD quota since her visual disability was having only 30%. The learned Government Pleader WP(C).No.28183 OF 2020(W) 5 also pointed out that Ext.P6 Regulations are already amended and Appendix H is substituted by Appendix H1. It is also submitted that the All India Quota seats were already reverted to State quota and allotments to those seats are also over.
4. As per Section 32 of the Right of Persons with Disabilities Act 2016, 5% reservation is admissible for persons with 'benchmark disabilities' in institutions of Higher Education. 'Persons with benchmark disability' is defined under Section 2(r) of the Right of Persons with Disabilities Act, 2016 as a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and it includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. 'Specified disability' is defined under Section 2(zc) of the 2016 Act as disabilities as specified in the Schedule.
5. In the present case the assessment is made in accordance with the Graduate Medical Education Regulations, 1997 issued by the MCI, as amended by gazette of India notifications issued on 04.02.2019 and 14.05.2019. Regulation 4(3)of Amendment regulations 2019 provides for reservation of 5% seats in the Medical Colleges for candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act 2016, based on the merit list of NEET. For this purpose specified disability contained in the schedule to the Right of Persons with Disabilities Act 2016 is annexed in WP(C).No.28183 OF 2020(W) 6 Appendix G and the eligibility of candidates to pursue a course in Medicine with specified disability shall be in accordance with Appendix H1, which provides for the guidelines regarding admission of students with disabilities under the Rights of Persons with Disabilities Act 2016 for admission to MBBS course. Note 1 to 3 in Appendix H1 read as follows:
"Note 1: The certificate of disability shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (the Divyangjan)] on 15 June 2017'.
2. The extent of 'specified disability' in any person shall be assessed in accordance with the "Guidelines for the purpose of assessing the extent of disability in a person included under the Rights of Persons with Disabilities Act 2016 (49 of 2016) notified in the Gazette of India by the Ministry of social Justice and Empowerment (Department of Empowerment of Persons with Disabilities (the Divyangjan)] on 4th January 2018.
3. The minimum degree of disability should be 40% (benchmark disability) in order to be eligible for availing reservation for persons with specified disability."
Clause 4 along with the Relevant portion of the table with respect to visual impairment read as follows:
"4. The term 'Persons with Disability is to be used instead of the term 'Physically Handicapped' (PH).
Disability Type of Specified Disability range
type disabilty disability
Eligible for Eligible for medical Not eligible for
Physical medical courses. courses. Eligible Medical Course
disability Not eligible for for PwD quota
PwD quota
a xx x x x
B. Visual Blindness Less than 40% Equal to or more
WP(C).No.28183 OF 2020(W) 7
Impairment Low vision disability than 40%
(*)
x xxxxxx x x X
(*)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 less than the bench mark of 40% with advanced low vision aids such as telescope/magnifier, etc. The medical report would show that the medical board, which examined the petitioner, found her disability at 30% and hence she was found not eligible for admission under the PwD quota.
There is no reason for this Court to disbelieve or to interfere with the report of a body of experts in the field. The minimum percentage of disability for inclusion is 40%. When in the case of the petitioner also the Graduate Medical Education Regulations govern the field, the certificate Ext.P1 obtained by the petitioner cannot have any relevance in view of the provisions contained in regulation 4(3) read with Appendix H1.
6. As pointed out by Sri. Manu, the learned Senior Government Pleader, this Court has in the judgment in W.P(c).No.16743/2019, while considering a similar case where the assessment of suitability by the medical board was challenged, repelled their claim taking note of the introduction of Appendix H1 by way of amendment regulations of 2019, by which the authorities are enabled to assess the suitability of the candidates. The said judgment was upheld by a Division Bench of this Court in W.A.No.1694 of 2019.
Moreover, the seats are already filled up. In the above WP(C).No.28183 OF 2020(W) 8 circumstances, the petitioner cannot be granted any relief. The Writ Petition is accordingly dismissed.
Sd/- (P.V.ASHA, JUDGE) rtr/ WP(C).No.28183 OF 2020(W) 9 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE STANDING DISABILITY ASSESSMENT BOARD, DISTRICT HOSPITAL, PALAKKAD DATED 17.10.2007.
EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD FOR PERSONS WITH DISABILITIES ISSUED BY THE SOCIAL JUSTICE DEPARTMENT OF THE GOVERNMENT OF KERALA DATED 29.08.2014.
EXHIBIT P3 TRUE COPY OF THE PROVISIONAL ALLOTMENT LETTER ROUND NO.1 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DATED 6.11.2020.
EXHIBIT P4 TRUE COPY OF THE PROVISIONAL ALLOTMENT LETTER ROUND NO.2 ISSUED BY THE 1ST RESPONDENT DATED 26.11.2020.
EXHIBIT P5 TRUE COPY OF THE RELIEVING LETTER ISSUED BY THE DEAN, GOVERNMENT THIRUVARUR MEDICAL COLLEGE, THIRUVARUR DATED 1.12.2020.
EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE REGULATION PUBLISHED BY THE MEDICAL COUNCIL OF INDIA AS PER AMENDMENT NOTIFICATION DATED 4.2.2019.
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED TO THE PETITIONER BY 4TH RESPONDENT AS NO.G2/30976/2019/GMCHT DATED 5.12.2020. EXHIBIT P8 TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE 4TH RESPONDENT AS NO.
G2/30976/2019/GMCH DATED 7.12.2020.