Bombay High Court
Abc vs State Of Maharashtra And Ors on 3 April, 2019
Author: Bharati H.Dangre
Bench: Ranjit More, Bharati H.Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3851 of 2019
ABC .. Petitioner
Versus
The State of Maharashtra & ors .. Respondents
...
Mr. V.M.Thorat with Pooja Thorat for the petitioner.
Mrs.R.A. Salunkhe AGP for the State.
Mr.S.S. Patwardhan for respondent no.3.
Mr.Ganesh Gole for respondent no.4.
CORAM: SHRI RANJIT MORE &
SMT. BHARATI H.DANGRE, JJ.
DATED : 3rd APRIL 2019 P.C:-
1 The issue involved in the present petition is whether the petitioner is suffering from benchmark disability under The Rights of Persons with Disabilities Act 2016. The petitioner claims that he was diagnosed with Mixed Anxiety and Depressive Disability (MADD). He obtained a certificate in terms of Gazette Notification No. MCI-34(41) 2018-
Med./1170045 dated 5th February 2019 for admission to Tilak ::: Uploaded on - 03/04/2019 ::: Downloaded on - 04/04/2019 05:08:59 ::: 2/8 (908) WP 3851-19.doc Medical Courses in All Indian Quota. The said certificate certifies that he has Permanent Mental Impairment with Disability Range of less than 40%. With the said certificate, the petitioner is desirous of obtaining a seat in Post Graduation course in terms of Section 32 of the Disabilities Act 2016 which make it imperative for institutions receiving aid from the Government to reserve not less than 5% seats for persons with benchmark disabilities. Learned counsel Shri Thorat appearing for the petitioner submits that the petitioner undisputedly falls within the benchmark disability as defined in Section 2(r) of The Rights of Persons with Disabilities Act, 2016. However, in light of the regulations framed by the Medical Council of India (MCI) on 13th March 2019, the criteria has been changed by the MCI in the midst of on-going admission process, which reckons the petitioner as ineligible for admission to Post graduate medical course from PwD category. The petition has been moved before us in light of the extreme urgency being, the first round of counselling of All India Quota is to commence for the current Academic Year 2019-2020 is to commence in the monrh of March.
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2 The Rights of Persons with Disabilities Act 2016
give effect to the United Nations Convention on the Rights of Persons with Disabilities and is an enactment intended for empowerment of persons with disabilities and intends to give full and effective participation of the differently abled persons by affording equality of opportunity. Section 32 of the said Enactment makes it mandatory for all the Government institutions of higher education and other higher education institutions receiving aid from the Government to reserve not less than 5% seats for persons with benchmark disabilities. Section 2(r) defines the term "Person with benchmark disability" as follows :
"Person with benchmark disability" means a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.
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3 The schedule appended to the said Act enlists the
specified disabilities under various heads and clause (3) of the said schedule provides for Mental behaviour and reads thus :
3. Mental behaviour --
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. 4 Perusal of the definition contained in Section 2(r) thus covers a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and it also includes a person with a disability where specified disability has been defined in measurable terms as the one certified by the certifying authority. The said term thus recognizes "a person with benchmark disability". The petitioner is in possession of a certificate certifying his disability to be less than 40% and since it is a measurable disability, he is Tilak ::: Uploaded on - 03/04/2019 ::: Downloaded on - 04/04/2019 05:08:59 ::: 5/8 (908) WP 3851-19.doc included in the category of person with benchmark disability. Regulation issued by the Medical Council of India on 13 th March 2019 is accompanied with a schedule regarding specified disability. It also specifies the guidelines regarding admission to students with 'specified disabilities' under the Rights of Persons with Disabilities Act, 2016 with respect to admission in Post Graduate Courses in modern medicine. It prescribes that the minimum degree of disability should be 40% (benchmark disability) in order to be eligible for availing reservation of persons with specified disability. As far as Mental behaviour is concerned, a person with mental illness less than 40% is held eligible for medical courses, but not held eligible for PwD Quota. Further, for eligibility of medical courses and for eligibility of PwD Quota, it states that it is not currently recommended due to lack of objective method to establish presence and extent of mental illness and the benefit of reservation/quota may be considered in future after evolving the methods of disability assessment.
The regulation dated 13th March 2019 travels beyond the scope of the definition as contained in Section 2(r) Tilak ::: Uploaded on - 03/04/2019 ::: Downloaded on - 04/04/2019 05:08:59 ::: 6/8 (908) WP 3851-19.doc of the Act of 2016, since the definition includes a person with disability which is defined in measurable terms and as certified by certifying authority, we are of the prima facie view that it was not open for the Medical Council of India to peg down the degree of disability below 40%. We are prima facie satisfied that the petitioner falls within clause 2(r) of the Act of 2016. We have also noted another reason that for the previous year, the MCI had made a provision for filling upto 5% seats by persons with benchmark disabilities in accordance with the provisions of Act of 2016 based on the merit list of National Eligibility cum Entrance Test for admission to Post Graduate medical courses. The introduction of a stipulation that the disability should be below 40% in the Impugned Regulation of 2019 and that too, at the midst of the admission process cannot deprive the petitioner of his claim from the benchmark disability category.
5 Shri Gole, learned counsel appearing for the Medical Council of India - respondent no.4 seeks some time to file an affidavit in response to the petition. We grant four Tilak ::: Uploaded on - 03/04/2019 ::: Downloaded on - 04/04/2019 05:08:59 ::: 7/8 (908) WP 3851-19.doc weeks time to enable him to file his response. However, since the petitioner is ousted from the process on account of the impugned regulation, by way of an interim order, we direct the respondent CET to consider the petitioner as eligible for admission to Post Graduate Medical course provisionally under the "Persons with Disability Category". It is made clear that the petitioner will not claim any equity and his admission is subject to the final outcome of the present writ petition. 6 In the cause title of the petition, the petitioner has not disclosed the name of the petitioner in light of the illness suffered by him on the apprehension that disclosure of the name would be stigmatic and can lead to tremendous humiliation and deprivation of reputation in society. 7 Learned counsel for the petitioner Ms.Thorat has tendered before us a copy of the writ petition which is sworn by the petitioner with his original name. We direct the Registry to place the copy of the said petition in a sealed envelope along with it is verification.
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Registry is also directed to transmit the name of the petitioner in a sealed envelope to the respondent no.3 for the purposes of consideration of the claim of the petitioner for admission to the Post Graduate course from the disability category.
(SMT. BHARATI H. DANGRE, J.) (RANJIT MORE, J.) Tilak ::: Uploaded on - 03/04/2019 ::: Downloaded on - 04/04/2019 05:08:59 :::