Gujarat High Court
Dr.Deval vs Union on 24 November, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/6412/2010 1/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6412 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DR.DEVAL
R MEHTA - Petitioner(s)
Versus
UNION
OF INDIA & 5 - Respondent(s)
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Appearance
:
MR
SN THAKKAR for Petitioner(s) : 1,
MR PS CHAMPANERI for
Respondent(s) : 1,
MR MITUL K SHELAT for Respondent(s) : 3,
MRS.
KRINA CALLA AGP for Respondent(s) : 4,5
MR HRIDAY BUCH for
Respondent(s) : 6,
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
:24/11/2010
CAV
JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The writ petition was preferred by petitioner to set aside the decision of the 6th respondent refusing admission to the petitioner for the post-graduate medical course under the physically handicapped category. Further prayer was made to declare Rule 5.0 of the Rules and Regulations for Admissions in Post Graduate Degree and Diploma Medical Courses as ultravires the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as `the Disabilities Act') for short) to the extent the same mandate that the upper limbs shall be normal and that the locomotory disability in the lower limbs must be between 50% to 70%. By a petition for amendment, the petitioner has also challenged the Notification dated 25.03.2009 introducing amendment in clause 9(1)(a) to the Postgraduate Medical Education Regulations, 2000.
2. The petitioner was born on 02.12.1984, had a critical fall on 11.06.1985 and suffered a head injury, which was diagnosed as right sided hemiparesis at level C4-C5 of the vertebrae. The effect was muscular weakness of both the right upper limb and the right lower limb resulting in decreased grip and wasting of muscles on the right side. The petitioner on diagnosis has been declared as physically disabled having 50% permanent physical impairment.
3. According to the petitioner, after passing XII Std. Board Examination in Science Stream from ICSE Board, he was granted admission on 28.12.2002 to the M.B.B.S. course with the Surat Municipal Institution of Medical Education and Research (SMIMER) in the physically handicapped category. He cleared his M.B.B.S. along with one year compulsory rotatory internship in March 2009. On 20.05.2009, the petitioner was given the general registration No. G-42048 by the Gujarat Medical Council and was conferred the M.B.B.S. degree by Veer Narmad South Gujarat University on 26.02.2010. The renewed disability certificate was issued on 18.11.2009 certifying that the petitioner is physically disabled and having 50% permanent physical impairment. The petitioner appeared in the examination on 29.01.2010 conducted by P.G. Medical Education Committee, Saurashtra University, seeking admission to P.G. Medical course and had qualified in the open merit/physically handicapped category. 07.04.2010 was the date fixed for counseling by the Saurashtra University and three seats were reserved for physically handicapped category. There were only three candidates, who had sought admission in the physically handicapped category and the petitioner, being the lone outsider having done graduation from another University, was placed at Sr.No.3 in the said list of physically handicapped candidates. The first candidate refused to opt for taking any seat and the second physically handicapped category candidate opted for MDTB and Chest course and therefore the petitioner had the option of selection from any of the options reserved for the remaining two seats of the physically handicapped category.
4. According to petitioner the P.G. Medical Admission Committee after going through disability certificate of the petitioner concluded that the petitioner having 50% disability of upper limb is not eligible for admission against reserved seats of physically handicapped persons in view of guidelines of the Medical Council of India (hereinafter referred to as `the M.C.I.' for short).
5. The petitioner appealed to the Vice Chancellor of the 6th respondent University and also lodged his grievance with the State Commissioner for Disabled Persons on 09.04.2010. After hearing the parties on 23.04.2010, the State Commissioner requested the 6th respondent University to consider the petitioner's case sympathetically, but the 6th respondent University after seeking guidelines from the 3rd respondent M.C.I. and having not taken any decision, the petitioner moved before this Hon'ble Court as second counseling was to start to fill the reserved seat for handicapped out of open/general merit category.
6. In view of interim order passed by this Court, the petitioner has been admitted in the postgraduate course of Medical Science against the reserved seat for disabled persons, he having come within the zone of consideration and having competed in the competitive examination. Such admission has been taken subject to the decision of the case.
7. It appears that M.C.I. with approval of the Central Government published `The Post Graduate Medical Education (Amendment) Regulations 2009 (hereinafter referred to as `2009 Guidelines', for short). By the said amendment Sub-clause (1)(a) has been added in clause 9 under the heading `Selection of Postgraduate Students'. A proviso has been added after the sentence `General Category Candidates' in the fourth line of the first proviso to clause 9(2)(iv), as quoted hereunder:
"9(1)(a).
3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%."
"45% for persons with locomotory disability of lower limbs in the same manner as stipulated in Clause 9(1)(a) above."
8. The petitioner has challenged the aforesaid Amending Regulations 2009 whereby 3% seats of the annual sanctioned intake capacity has been limited only to the candidates with locomotory disabilities of lower limbs between 50% to 70%.
9. The main plea taken by the petitioner is that the aforesaid Amending Regulations 2009 are ultravires Sec.39 of the Disabilities Act.
10. Learned counsel for the petitioner would submit that petitioner having been treated as disabled was admitted in M.B.B.S. course against 3% seats reserved for disabled persons. Once he having been accepted as disabled for the purpose of studying M.B.B.S. course, he cannot be discriminated vis-a-vis other disabled persons for admission in postgraduate course on the ground that he has upper limb disability. It has no nexus with the object sought to be achieved.
11. Learned counsel for the M.C.I. would submit that so long as the 3% reservation is concerned, the policy of M.C.I. prescribing higher disabilities than that provided under the Disabilities Act was within its competence of M.C.I. Referring to a decision of Orissa High Court in D.S. Rashmi Ranjan Vs. Chairman, JEE 2004 and others in W.P.(C) Nos. 7877 of 2004 and analogous cases, he would contend that very often, it is found that 40% of disability provided under the Disabilities Act is of such a nature that it may amount to grant of unfair advantage to such persons, and thereby defeating the purpose behind the Disabilities Act. For example, if there is a loss of phalanx or phalange of a finger, that may entitle a candidate to claim 40% disability. The rationale behind the upward revision from 40-60% to 50-60% is that a person with more aggravated disability should be preferred against another, who suffers from relatively minor disability. According to M.C.I., the decision fixing the higher degree of disability has been taken with a view to further the objective behind the Disabilities Act, and at the same time maintain the standards of Medical Education under the Indian Medical Council Act. 1956.
It is submitted that the General Body of the M.C.I., based on the recommendations of the Executive Committee, was of the view that extending the benefit of reservation to persons suffering from disability of upper limb should not be allowed, as the upper limbs are required to elicit sign during the clinical examination, and finer movements are desired for conduct of surgical procedure, and accordingly, M.C.I. prescribed 50-70% of locomotory disabilities of the lower limbs as the eligibility criteria for consideration of a candidate for admission to M.B.B.S. course, reserved for disabled category.
12. It was submitted on behalf of learned counsel for the M.C.I. that Orissa High Court while pronouncing its common judgment in the case of D.S. Rashmi Ranjan (supra) upheld the decision of the M.C.I. to consider only those candidates for admission to medical courses having locomotory disability of lower limbs upto 70%. The Orissa High Court held that in view of the definition of `persons with disability' u/Sec.2(t) of the Disabilities Act, read with Sec.39 of the said Act, all persons with 40% and above disabilities till the limit of 70% would be eligible for admission to medicine courses. It is stated that M.C.I. for authoritative pronouncement on the issue approached the Hon'ble Supreme Court in S.L.P.(C) Nos.7952-53/2005 in M.C.I. Vs. D.S. Rashmi Ranjan and others.
In the said case, the Supreme Court passed interim order on 25.04.2005 and stayed the operation of the judgment of the Orissa High Court. From the record, it appears that the order of stay was later on clarified by the Supreme Court on 08.08.2006, wherein the Supreme Court ordered that:
"The order dated 25th April, 2005, staying the operation of the impugned order dated 2nd February, 2005, in C.W.P. Nos. 7877 and 7878 of 2004 does not prevent the admission of physically handicapped candidates having locomotive disability of lower limb between fifty and seventy percent."
13. It appears that the M.C.I., originally noticed a judgment of Delhi High Court in C.W.P. No.6496/2000 - Rekha Yagi Vs. Vice Chancellor, University of Delhi and others, wherein it was held by Delhi High Court that Sec.39 of the Disabilities Act has no application for reservation of seats, and that it refers to reservation of posts as the Section falls under the Chapter `Employment'. The relevant portion of the judgment dated 17.08.2001 is as under:
"Looking at from the above angles, the inevitable conclusion is that Section 39 has no application for reservation of seats. For that purpose the word "post" has to be profitably used in place of "seats".
It falls in line with the legislative intent at amply reflected in Section 32 and Section 33. In other words, in government educational institution or aided institutions three per cent of the posts can be reserved for persons with disabilities. The procedural aspects for employment as applicable to other provisions of Chapter VI have perforce application to Section 39. The reference is accordingly disposed of."
14. In the meeting of the Executive Meeting of the M.C.I., the question fell for consideration as to whether the guidelines of M.C.I. providing for locomotory disability of lower limbs between 40-60% as existing at that time in 2003 applies to admission in M.B.B.S. only, or it also applies to P.G. Medicine courses. The Executive Committee considered the earlier guidelines dated 05.07.2001, whereby it was observed that the visually handicapped and hearing disabled should be deleted from the said category, and they should be considered invalid for admission in the M.B.B.S. course. Amongst the locomotory disabled, the upper limb should be functional and normal, as it is required to elicit sign during clinical examination, and finer movements are desired for conduct of surgical procedure. Again, the feeling and sensation are important for clinical diagnosis and the treatment, and locomotory disabled involving upper limb should be considered not eligible for admission to the professional medical course. The locomotory disabled involving the lower limb was held to be permissible, but it should be within the guidelines of 40-60%. On that basis, taking into account the aforesaid, the Committee decided to withdraw the communication dated 29.04.2003, and the Committee reiterated that only persons with locomotory disability of lower limb between 50-70% should be allowed the benefit of reservation under the Disabilities Act for admission in the medical courses.
15. Sec.39 of the Disabilities Act and other relevant provisions of the said Act fell for consideration before a Division Bench of this Court in Palak Kailashchandra Jain Vs. Union of India and others reported in 2001(3) GLH 299. In the said case, the Court considered the question whether Sec.39 of the Act provides for reservation of seats. We have noticed that the Delhi High Court in its judgment dated 17.08.2001 in C.W.P. No.6496/2000 held that Sec.39 has no application for the reservation of the seats. The procedural aspect for employment as applicable to other provisions of Chapter VI have perforce application to Sec.39.
In the case of Palak Kailashchandra Jain (supra), Division Bench of this High Court having noticed Sec.39 of the Act and other provisions, held that Sec.39 though falls in Chapter VI, the head `employment', does not mean that Sec.39 is concerned with employment. The said provision, i.e. Sec.39, is a mandate to government educational institutions and to the other educational institutions receiving aid from the government including the government medical colleges and government aided medical colleges to reserve 3% of the seats for students with disabilities.
16. Sec.39 of the Disabilities Act reads as under:-
"39.
Time-limit for the notification of vacancies.-
(1) Vacancies, required to be notified to the local Special Employment Exchange, shall be notified at least thirty days before the date on which applicants will be interviewed or tested where interviews or tests are held, or the date on which vacancies are intended to be filled, if no interviews or tests are held.(2)
Vacancies required to be notified to the Special Employment Exchange notified under sub-rule (1) of Rule 37 shall be notified at least three weeks before the date on which applicants will be interviewed or tested where interviews or tests are held, or the date on which vacancies are intended to be filled, if no interviews or tests are held.
(3) An employer shall furnish to the concerned Special Employment Exchange, the results of selection within fifteen days from the date of selection."
Persons with disability has been defined u/Sec.2(t), the meaning of which is as follows:-
"2(t) "person with disability" means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub-normality of intelligence.
What is disability, meaning of which has been shown in Sec.2(i), as defined and quoted hereunder:-
"2(i) "disability" means -
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotory disability;
(vi) mental retardation;
(viii) mental illness"
From the aforesaid provisions of the Disabilities Act, it will be evident that those who have suffered from not less than 40% of any disability as certified by Medical Authority, fall within the meaning of "person with disability" for the purpose of claiming reservation against 3% seats u/Sec.39.
17. Sec.33 though deals with reservation of posts, it subdivides 3% quota in 3 sub-quotas between (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotory disability or cerebral palsy. Sec.33 make no reservation for persons with disabilities such as leprosy-cured, mental retardation, mental illness.
18. The question arises that if Sec.39 provides reservation of not less than 3% of seats for "persons with disabilities", and "persons with disabilities" means those suffering from not less than 40% of any disability, can the M.C.I. regulate the admission by making further classification between the persons with limited disabilities, one having lower locomotory disabilities against the other having upper locomotory disabilities for the purposes of admission in postgraduate course?
19. Learned counsel for the M.C.I. would refer to sub-sections (j), (l), (m) of Sec.33 of the Indian Medical Council Act, whereunder M.C.I. has been empowered to make regulations for courses and period of study and of practical training, conduct of professional examinations, qualification examinations and the conditions of admission to such examinations, and any other matter for which provisions have been made under the Act. The Orissa High Court in the case of D.S. Rashmi Ranjan (supra) held as follows:-
"13.
However, the decision of the Medical Council with regard to the upper degree of disability with which a person would be able to undertake the M.B.B.S. course and the type of disability or suffering with which a student can undertake the M.B.B.S. Course cannot be questioned since the Medical Council is competent to lay down the standard of a candidate required for entry to medical course. Lying down the standard of a candidate for entry to medical course will take within its sweep the power to lay down the standard of physical ability with which a student can undertake the course. The opinion of the Medical Council that a person with locomotory disability of the upper limb or with any other disability as in 2(i) of the Act except locomotory disability of the lower limbs would not be eligible to take up the medical course since a medical practitioner is required to elicit sign during the clinical examination and finer movements are desired for conduct of surgical procedure so also the feeling and sensation are important for a clinical diagnosis and treatment, are reasonable considerations to determine as to whether a person can undertake the course. Determination of upper limit of disability at 70% has not been challenged int he writ applications. The decision of the Medical Council that person with locomotory disability of the lower limbs only is eligible to be considered for admission cannot otherwise be challenged since it is for the Medical Council to see as to whether a person with some disability can effectively undertake the course and ultimately can function successfully as a medical practitioner. 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 locomotory disability of the lower limb only and with no other disability are eligible for admission to M.B.B.S. course therefore cannot be faulted."
However, the aforesaid judgment has been stayed by the Hon'ble Supreme Court in M.C.I. Vs. D.S. Rasranjan by its order dated 25.04.2005 in S.L.P.(C) No.7952-7953/2005. Subsequently, the Supreme Court passed the following order on 24.08.2006:-
"After some arguments, we have asked Mr. Maninder Singh, learned counsel for the Medical Council of India, as to why candidates suffering from locomotive disability of lower limb of less than fifty per cent but more than forty per cent should not get admission in the medical courses in case sufficient number of candidates for three per cent quota seats with disability of fifty to seventy per cent are not available. Mr. Maninder Singh prays for a short adjournment to take instructions."
20. It is informed that in view of the aforesaid observation made by the Supreme Court, now a provision has been made by amending the Regulations 2009, to admit disabled persons between 40-60% with lower limb locomotory disability, if no person is available with lower limb locomotory disability between 50-60%.
21. Similar question fell for consideration before the Gauhati High Court in Smt. Anju Talukdar and Another Vs. State of Assam and Others reported in AIR 2009 Gauhati 54.
In the said case, the Court noticed a similar educational notice No. DME/09/2008/7791 dated 12.05.1998 issued by the 2nd respondent of the said case, wherein the quota was restricted for physically handicapped candidates only to persons with locomotory disabilities of lower limbs having disabilities between 50-70%, and renders the admission of the candidates subject to medical fitness. In the said case, it was stated that reservation provision had been adopted on the basis of the guidelines of the M.C.I. for filling up reserved seats for persons having locomotory disabilities for admission in medicine courses, pursuant to M.C.I. letter No.MCI-34(1) 2003-MED/117773 dated 14.07.2003, which inter alia prescribed for reservation for persons with locomotory disabilities of lower limb between 50-70%, who only be allowed the benefit of reservation under the Disabilities Act for admission to all Medicine courses.
In the aforesaid case of Smt. Anju Talukdar, claim was made by a person who had visual impairment or hearing impairment seeking admission to medical courses in the country. The Gauhati High Court on hearing the parties, observed that when language of Sec.39 of the Disabilities Act being clear and categorical that the benefit of reservation should be expanded to all categories of persons with disabilities, which by definition under the Act recognizes 7 categories of disabilities denying the benefit, also appears to us to be wholly illegal, in absence of any legal tenable justification, which justification if exists should have been placed.
22. The relevant provision of Sec.33 of the Indian Medical Council Act, 1956, as referred to by learned counsel for the M.C.I., do not empower the M.C.I. to limit 3% reservation of seats as provided u/Sec.39 within a limited disabled persons. It is true that the M.C.I. has power to frame regulations laying down the minimum criteria for admission, qualification, etc. for admission to M.B.B.S. or postgraduate medical courses. It can also lay down guidelines of fitness for such guidelines, but the question arises that if under the Central Act, viz. the Disabilities Act, "person with disability" as defined is given a meaning of `persons suffering from not less than 40% of any disability' as certified by Medical Authority, the M.C.I. has any authority to frame a regulation, limiting the same only to persons having locomotory disabilities as done by the Amending Act, 2009 notified on 25.03.2009?
23. It will be evident that the Notification dated 25.03.2009 has been issued u/Sec.33 of the Indian Medical Council Act, 1956, which empowers the M.C.I. to make regulations. We have noticed that learned counsel for the M.C.I. could not lay hand on any particular clause of Sec.33, under which the said provision has been made. A general statement was made that it has been framed under clause (n) of Sec.33, which relates to any matter for which under the Indian Medical Council Act 1956 provisions may be made by regulations.
24. The Disabilities Act was enacted pursuant to a meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 held at Beijing on 1st to 5th December, 1992 wherein they adopted a Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region. It came into effect from 01.01.1996. U/Sec.72 of Disabilities Act, it is made clear that the provisions of the said Act or the Rules made thereafter is in addition to, and not in derogation of any other law for the time being in force or any Rules or Order or any Instruction issued thereunder enacted or issued for the benefit of persons with disabilities. Such provisions have been made under the Central Act, viz. the Disabilities Act, defining the persons with disabilities means a person suffering not less than 40% of any disability as certified by any Medical Authority. Any decision or regulation framed by the M.C.I. contrary to Sec.2(t) shall be ultravires the said provisions. It is true that the M.C.I. has jurisdiction to frame regulations for admission in M.B.B.S. or postgraduate medical course, but no provision can be made against any Central Act, including Sec.2(t) of the Disabilities Act wherein `person with disability' has been defined. The Postgraduate Medical Education (Amendment) Regulation 2009, issued by Notification dated 25.03.2009, adding sub-clause(1)(a) and proviso to clause (2)(iv) to Sec.9 therein being contrary to and amounting to altering definition of `person with disability' as defined u/Sec.2(t) of the Disabilities Act, we hold the Postgraduate Medical Education (Amendment) Regulations, 2009 Part-I so far as it relates to addition of sub-clause (1)(a) and proviso to clause (2)(iv) to Sec.9 relating to locomotory disability as ultravires.
25. We have noticed that the aforesaid issue has not been decided by the Orissa High Court or Gauhati High Court in its earlier judgment nor by the Delhi High Court of which reference has been noticed in the said case. It has not been brought to our notice that the validity of the Postgraduate Medical Education (Amendment) Regulations, 2009 is under consideration before the Supreme Court. It is not in dispute that the petitioner has become disabled much prior to his admission in M.B.B.S. Course. He was admitted in the M.B.B.S. Course and has already completed such Course. He being fit for admission in the M.B.B.S. Course with both upper and lower locomotory disability, it cannot be stated that he is not fit for admission to Postgraduate Medical Course.
26. Further, if a person having both upper and lower locomotory competes in the test and falls within the merit category in absence of any prohibition under the Regulations, such person is fit for admission in the Postgraduate Course. If such person can be admitted against unreserved seat, i.e. merit category, Medical Council of India cannot exclude persons with upper limb locomotory disability from admission in the Postgraduate Course on the ground that such person cannot elicit sign during clinical examination.
It is not the case of the M.C.I. or the respondents that the petitioner as a medical practitioner having M.B.B.S. degree is invalidated as he cannot elicit sign during clinical examination or has no sensation in the upper limb for clinical diagnosis and treatment. In absence of any such finding by any of the authorities, he having been allowed to compete for the M.B.B.S. Course and having already completed the said Course, for the purpose of admission in the Postgraduate Course he cannot be held to be ineligible.
27. In the facts and circumstances, while giving the aforesaid declaration, we direct the respondents to allow the petitioner to continue with his studies, as taken pursuant to the interim order of this Court, particularly when he was earlier allowed to study the M.B.B.S. Course and has passed out successfully and completed the internship course. The writ petition is allowed, but there shall be no order as to costs.
(S.J. MUKHOPADHAYA, C.J.) (ANANT S. DAVE, J.) [sn devu] pps After the judgement was delivered, counsel for the respondent no.3 prayed for stay of the judgment in question. But, in view of the grounds shown in the judgment, prayer for stay is rejected.
(S.J. MUKHOPADHAYA, C.J.) (ANANT S. DAVE, J.) [sn devu] pps Top