Gujarat High Court
Ganeshbhai Viththalbhai Baraiya vs State Of Gujarat on 21 August, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/10980/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10980 of 2018
==========================================================
GANESHBHAI VITHTHALBHAI BARAIYA Versus STATE OF GUJARAT ========================================================== Appearance:
RAHUL SHARMA(8276) for the PETITIONER(s) No. 1,2,3 MS MANISHA LAVKUMAR, GP WITH MR DM DEVNANI, AGP(99) for the RESPONDENT(s) No. 1 for the RESPONDENT(s) No. 2 MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 21/08/2018 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The petitioners have filed this petition under Article 226 of the Constitution of India in which the petitioners have prayed for the following reliefs:-
"8 A) Admit and allow this petition.
B) Issue a writ of mandamus or any other writ, order or direction to quash and set aside Rule 6 of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2017, in so far as medical examination by a Medical Board constituted by the Respondent No.1 for this purpose is concerned and further quash all proceedings executed by such Medical Page 1 of 15 C/SCA/10980/2018 CAV ORDER Board, including the declarations of the Medical Board on the physical disability of the petitioners.
C) Direct that the Respondents shall hold the disability certificates issued to the petitioners as valid for all purposes, including for purposes of admission to the MBBS and other courses.
D) Direct the Respondents to admit the petitioners in the appropriate medical course depending upon their merit-cum-choice based on their Medical Disability Certificate.
E) Pending final disposal of this petition, direct Respondent No.2 to admit the petitioners in the appropriate medical course based on their merit-cum-choice.
F) Pass any such other orders as may be deemed fit, proper and just in the interest of justice pending admission, hearing and final disposal of the present petition."
2. The factual matrix of the present case is as under:
2.1 The petitioners are students with physical disabilities who have undertaken National Eligibility cum Entrance Test (`NEET' for short), 2018 for taking admission to the different local colleges of the State of Gujarat and India. It is stated that they have passed their standard 10th and standard 12th examination from Gujarat and are also domicile in Gujarat.
The petitioners possess disability certificates Page 2 of 15 C/SCA/10980/2018 CAV ORDER issued by the designated competent authorities at the relevant point of time. The Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as `the Act of 2016') provides that disability certificate shall be issued by the designated competent authority. Further, the disability of more than 40% is required, to be eligible for admission under the physically disabled category. It is stated that the petitioners have disability of more than 50%.
2.2 The admission to the MBBS course in various medical colleges of India are based on performance of candidates at NEET examinations. It is stated that scheme of admissions in medical courses is that 15% of the seats in each medical college is filled up by all India quota whereas rest of 85% seats are filled up by the respective states. It is further stated in the petition that Medical Disability Certificates obtained by the petitioners were under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2010 (hereinafter referred to as `Rules of 2010'). The petitioners have referred to the Regulations on Graduate Medical Education (Amendment), 2017 (hereinafter referred to as `the Regulations').
2.3 The petitioners have challenged the
Page 3 of 15
C/SCA/10980/2018 CAV ORDER
validity of Rule 6 of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2017 (hereinafter referred to as `Rules of 2017') insofar as medical examination by Medical Board constituted by the respondent no.1 is concerned. The petitioners have challenged the said Rule mainly on the following grounds :-
"(a) That the impugned Rule would be contrary to Section 57(1) of the Act, 2016 in as much as the impugned rule stipulates constitution of a Medical Board as against the said Section 57(1) which prescribed for a certifying Authority for issuance of disability certificate.
(b) The Medical Board, constitution of which has been prescribed by the impugned Rule, would be without jurisdiction as the same is contrary to Section 57(1) of the Act of 2016.
(c) The certificates held by the petitioners being valid under the Act, must entitle them to avail admission more particularly MBBS course.
(d) The petitioners being persons with benchmark disability, as defined under the Act, shall be eligible for admissions on the seats for the Physically Disabled category.
(e) All admissions to MBBS course must follow MCI Regulations which are consistent with the provisions of the Act of 2016.
3. Heard learned advocate Mr.Rahul Sharma for the petitioners, learned Government Pleader Page 4 of 15 C/SCA/10980/2018 CAV ORDER Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Mr.Devnani for respondent no.1 and learned advocate Mrs.V.D.Nanavaty for respondent no.3.
3.1 Learned advocate Mr.Sharma has referred to the objects and reasons of Act of 2016 and thereafter referred to the provisions contained in Sections 2(e),2(r) and 2(zc) of the Act of 2016. He, thereafter, referred to the provisions contained in Section 57 of the Act of 2016 and contended that constitution of Medical Board under Rule 6 of the Rules of 2017 is contrary to Section 57(1) of Act of 2016. It is submitted that the petitioners are having valid certificates issued by the competent authority and they possess the benchmark disability defined in Section 2(r) of the Act of 2016 and therefore in absence of any provision in the Act of 2016 to consider the suitability of the candidates for admission in question, certificate issued by the Medical Board stating that the petitioners are not suitable for medical courses and not eligible under physically handicap quota are in violation of provisions of Act of 2016.
3.2 Learned advocate Mr.Sharma would, therefore, contend that in absence of provision of considering the suitability of the concerned Page 5 of 15 C/SCA/10980/2018 CAV ORDER candidates, the Medical Board has no jurisdiction to consider the suitability under Act of 2016 and therefore the Rule 6 of Rules of 2017 be set aside as the same is contrary to the provisions of Act of 2016.
3.3 Learned advocate Mr.Sharma, thereafter, referred to the Regulations of Graduate Medical Education, 1997 framed by Medical Council of India which are amended upto May, 2018, copy of which is produced at page 108 of the compilation. Learned advocate referred to amended provision of Clause 2(f) which is produced at page 114 of the compilation. After referring to the same, it is submitted that five percentage seats of annual sanctioned intake capacity shall be filled up with candidates with benchmark disabilities in accordance with the provisions of the Act of 2016, based on the merit list of NEET. For the said purpose, the `specified disability' contained in Schedule to the Act of 2016 is as per Appendix `G'. It is, therefore, contended that petitioners are entitled to get admission on the basis of the provisions of the Act of 2016 as well as regulations framed by MCI. However, because of Rule 6 of the Rules of 2017, the case of the petitioners is not considered.
3.4 Learned advocate Mr.Sharma has placed
Page 6 of 15
C/SCA/10980/2018 CAV ORDER
reliance upon the decision rendered by the Delhi High Court in the case of Tina Sharma (Minor) Through Her Father Bhagwati Prasad Sharma V/s Union of India, reported in 2018 SCC Online Del 10246.
3.5 Learned advocate Mr.Sharma, therefore, urged that the petitioners are entitled to the reliefs prayed for in this petition and therefore this petition be allowed.
4. On the other hand, learned Government Pleader Mr.Manisha Lavkumar has opposed this petition and referred to the provisions contained in Section 2(b), Section 57 and 96 of the Act of 2016. It is contended that the State Government is appropriate government in the state which can designate certifying authority who is competent to issue the certificate of disability. It is stated that the provisions of the Act of 2016 are in addition to and not in derogation of any other law for the time being in force. He submitted that so far as the admissions to medical courses are concerned, the Apex body governing the same is Medical Council of India (`MCI' for short). MCI has issued guidelines stipulating the selection of physically disabled candidates. Learned Government Pleader has referred to the said guidelines which is produced at page 155 of Page 7 of 15 C/SCA/10980/2018 CAV ORDER the compilation. After referring to the same, it is contended that the assessment of physically disabled candidates become essential warranting appointment of experts in the field for determination of the abilities of the physically disabled candidates to undergo the medical courses. It is also pointed out that the state government has constituted Medical Board which would issue the certificate of disability and assess suitability of the candidate. It is also pointed out that state government has constituted Medical Appellate Board which would be authorized to review the decision of the Medical Board.
4.1 Learned Assistant Government Pleader thereafter referred the information booklet published by Central Board for Secondary Education (`CBSE' for short) prescribing the rules for selection for NEET. Copy of the same is produced at page 160 of the compilation.
4.2 Learned Government Pleader lastly submitted that looking to the nature of work to be undertaken by the students in medical courses and looking to the duties performed by the concerned persons after getting the degree of MBBS, state government is empowered to consider the suitability of the candidates for the said course which is to be examined by the Medical Page 8 of 15 C/SCA/10980/2018 CAV ORDER Board. Thus, Rule 6 of the Rules of 2017 is not contrary to provisions of Act of 2016 or violative of the provisions of the Constitution of India nor the same can be said to be arbitrary. Thus, it is contended that the petitioners are not entitled to the reliefs prayed for in the petition and therefore the petition be dismissed.
5. Learned advocate Mrs.Nanavaty has supported the submissions canvassed by the learned Government Pleader. Learned advocate Mrs.Nanavaty appearing for the MCI has referred to the notification dated 22.1.2018 issued by MCI while exercising the powers conferred under Section 33 of the Indian Medical Council Act of 1956. By the said notification, regulations of Graduate Medical Education (Amendment), 2017 are framed/amended. It is stated that the state government is empowered to constitute the Medical Board which can examine the disability and suitability of the candidate for undertaking the medical course. Learned advocate, therefore, urged that this petition be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the petitioners are students with physical Page 9 of 15 C/SCA/10980/2018 CAV ORDER disability who have undertaken the NEET (UG) examination for getting admission to the different medical colleges of state of Gujarat and India. The petitioners are having valid certificates of disability issued by the competent authority. After passing the NEET examination, the petitioners were asked to get certificate from Medical Board constituted by the state government under the Rules of 2017 as amended in 2018. The Medical Board examined all the petitioners and issued the certificates which are produced on record. As per the said certificates, the Medical Board has opined that the petitioners are not eligible under PH quota and not suitable for medical courses. Against the issuance of the said certificates, the appeal came to be filed before the appellate board and appellate board has also stated that they are not eligible under PH quota nor they are eligible for medical courses.
7. In the aforesaid factual background of the case, the petitioners have challenged the validity of Rule 6 of Rules of 2017 as amended in the year 2018. Rule 6, after amendment of 2018, reads as under:
"6. Reservation for Physically Disabled. Five per cent of the available seats in Government and Grant-in-aid institution in each category shall be reserved, for person Page 10 of 15 C/SCA/10980/2018 CAV ORDER with benchmark disabilities in accordance with the provisions of the Right of Persons with Disabilities Act 2016 as provided by Medical Council of India, New Delhi from time to time. The certificate shall be obtained from the Medical Board constituted for this purpose by the State Government. The Certificate shall contain extent of disability and suitability of such candidate for undertaking the course.
The admission on aforesaid reserved seats shall be subject to the furnishing of certificate duly issued by competent authority empowered by the State Government in this behalf."
8. At this stage, we would like to refer the provisions of the Act of 2016.
"Section 2(b):
"appropriate Government, means,-
(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonments Act, 2006, the Central Government;
(ii) in relation to a State Government or any establishment, wholly or substantially framed by that Government, or any local authority, other than a Cantonment Board, the State Government.
Section 2(e) : "certifying authority" means an authority designated under sub-section (1) of Section 57.
Section 2(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 measurable terms and includes a Page 11 of 15 C/SCA/10980/2018 CAV ORDER person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.
Section 2(zc): "specified disability" means the disabilities as specified in the Schedule.
Section 57 : (1) The appropriate Government shall designate persons, having requisite qualifications and experience, as certifying authorities, who shall be competent to issue the certificate of disability.
(2) The appropriate Government shall also notify the jurisdiction within which and the terms and conditions subject to which, the certifying authority shall perform its certification functions.
Section 96 The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force."
9. From the aforesaid provisions contained in Act of 2016, it can be said that the appropriate government shall designate the persons for certification of disabilities. In relation to the state government, the state government is appropriate government which can designate the persons for certification of disabilities. The state government has, therefore, constituted Medical Board for certifying the disability as prescribed under Chapter-X of the Act of 2016. At this stage, it is relevant to note that so far as the medical Page 12 of 15 C/SCA/10980/2018 CAV ORDER courses are concerned, MCI is the Apex body which has framed the regulations as it also issued guidelines for admission to medical courses and eligibility criteria is also prescribed. From the comprehensive report regarding the guidelines of persons with specified disability submitted by the concerned Ministry of Central Government, a copy of which is produced at page 155 of the compilation, it is revealed that for admission to medical courses, the candidates who have benchmark disability (40%) as certified by duly constituted Medical Board are within the zone of consideration. It is further required to be noted that CBSE has also stated in the information bulletin, copy of which is produced at page 160 of the compilation that candidates who considered themselves eligible for PH category are advised to ensure their eligibility by getting themselves examined by the government medical college/district hospital/government hospital. Such candidates will be required to produce disability certificate from one of the disability assessment boards constituted at the four metro cities.
10. From the aforesaid material placed before this Court along with the affidavit-in- reply filed by the respondent state, we are of the view that the provisions contained in Rule 6 Page 13 of 15 C/SCA/10980/2018 CAV ORDER is consistent with the practice adopted by the Central Government while implementing the physically disabled quota reservation in the All India quota.
11. The contention raised by the learned advocate for the petitioners that suitability of the candidate cannot be examined by the Medical Board is misconceived. It is required to be noted that the candidates who seek admission in medical courses have to undergo necessary training and after getting the degree of MBBS, they have to perform their duties in a particular branch of medicine. Looking to the medical courses to be undertaken by the candidate, the state government thought it fit to examine the suitability of the candidate also which cannot be termed as arbitrary or, in any way, violative of provisions contained in Act of 2016 or the Constitution of India. It is always open for the authority to consider the suitability of the candidate while granting admission in the medical courses. It is true that the petitioners are having benchmark disability as defined under Section 2(r) of the Act of 2016 and therefore they are within the zone of consideration. However, merely because they are within the zone of consideration, the admission cannot be granted if they are not suitable for the course which they incline to Page 14 of 15 C/SCA/10980/2018 CAV ORDER pursue. Thus, the Medical Board is empowered to consider disability as well as suitability of the candidate as per the provision contained in Rule 6 of the Rules of 2017 as amended in the year 2018.
12. In view of the aforesaid discussion, we are of the view that Rule 6 of Rules of 2017 is not violative of any of the provisions of the Act of 2016 or provisions of the Constitution of India. Thus, the petitioners are not entitled for the reliefs as prayed for in this petition. Accordingly, the petition is dismissed.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) SRILATHA Page 15 of 15