Chattisgarh High Court
Anjali Sonkar vs State Of Chhattisgarh on 15 December, 2022
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HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
WPC No. 4849 of 2022
Anjali Sonkar D/o Shri Rambhagat Sonkar, Aged About 19 Years R/o Ward
No.48, Nandai Chowk, Police Station Basantpur, Rajnandgaon, District
Rajnandgaon, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of Health And
Family Welfare, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nava Raipur,
District Raipur, Chhattisgarh
2. Union of India Through The Secretary, Ministry of Health And Family
Welfare, Nirman Bhawan, New Delhi.
3. Directorate of Medical Education, Through Its Director, D.K.S. Bhawan,
Raipur, District Raipur, Chhattisgarh
4. Dean, Government Medical College, Mahasamund, District Mahasamund,
Chhattisgarh
5. National Medical Commission Through Its Secretary General Pocket - 14,
Sector -8, Dwarika, Phase-1, New Delhi
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6. State Medical Board, Sanchalanalay, Chikitsa Shiksha, Chhattisgarh,
Raipur, Chhattisgarh
7. District Medical Board, Rajnandgaon, Chhattisgarh
---- Respondents
(Cause Title taken from Case Information System) 15/12/2022 Mr. Raghavendra Pradhan, learned Additional Advocate General, appearing for the respondents No. 1, 3, 4, 6 and 7, prays for some time to obtain instructions.
Prayer is allowed.
Call again at 2:15 pm. It is directed that status quo shall be maintained and the quota meant for the physically handicapped candidate shall not be converted to any other category till 2:15 pm. Any admission, if any, given today will be subject to further orders to be passed at 2:15 pm. Mr. Dheeraj Wankhede, learned counsel, appearing for the petitioner, Ms. Anmol Sharma, learned Central Government counsel, appearing for the respondent No. 2 as well as Mr. R.S.Marhas, learned counsel, appearing for the respondent No. 5, are present.
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Mr. Pradhan will communicate this order to the concerned authorities, telephonically.
Sd/- Sd/-
(Arup Kumar Goswami) (Arvind Singh Chandel)
Chief Justice Judge
Later on: Mr. Wankhede submits that pursuant to the position of the
petitioner in the merit list in the National Eligibility cum Entrance Test, 2022 (UG), she was allotted seat for the MBBS course in the Government Medical College, Mahasamund under the Other Backward Class (PwD) Grade II (40-50%) category.
On scrutiny of the documents, the petitioner was disqualified on the ground that (1) Disability certificate produced by candidate is made by the District Medical Board, Rajnandgaon is of upper limb deformity (40%). As per the gazette notification No. F-21- 02/2018/09/55-4, dated 25.05.2018 Sr. No. 5(B)(I) upper limb disability candidate is not eligible for admission; and (2) The disability certificate produced by candidate is not issued by State Medical Board as per the Annexure 4 of the above mentioned Gazette Notification No. F-21-02/2018/09/55-4, dated 25.05.2018.
After amendment, the reliefs prayed for, as on today, read as follows:
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"10.1 This Hon'ble Court may further kindly be pleased to call for the entire records in relation to the case of the petitioner from the possession of the respondents for its kind perusal.
10.2 This Hon'ble Court may further kindly be pleased to issue a direction to the State Medical Board to issue disability certificate to the petitioner. 10.3 This Hon'ble Court may also kindly be pleased to direct the respondent authorities to consider the merit of the petitioner and allot seat in MBBS course in the Government Medical College, Mahasamund under the PH category.
10.4 That, this Hon'ble Court may be pleased to grant such other relief(s) in favour of the petitioner, as it may deem fit and proper in the interest of justice. 10.5 Cost of the petition may also be granted to the petitioner.
10.6 That, this Hon'ble Court may kindly be pleased to issue order/ direction / writ and thereby declare the serial No. 5(2)(B) of the State Government Gazette notification dated 25.05.2018 "Chhattisgarh Chikitsa, Dant 5 Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak Pravesh Niyam, 2018 (in short 'the Rules of 2018') as unconstitutional and ultravires the Rights of Persons with Disabilities Act, 2016.
10.7 That, this Hon'ble Court may kindly be pleased to issue order/ direction / writ and thereby declare the serial No. 5(2)(B)(i) of the State Government Gazette notification dated 25.05.2018 "Chhattisgarh Chkitsa, Dant Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak Pravesh Niyam, 2018 (in short 'the Rule, 2018') as unconstitutional and ultravires the Rights of Persons with Disabilities Act, 2016.
10.8 That, this Hon'ble Court may kindly be pleased to issue order/ direction/ writ and thereby declare the Certificate of Disability issued by the District Medical Board under Rule 18 of the Right of Persons with Disabilities Rules, 2017 (Annexure P/5) as correct, valid and legal and thereby may kindly be pleased to direct the respondent authorities to consider the disability certificate (Annexure P/5) of the petitioner for the purpose of granting admission to the petitioner in Government Medical 6 College, Mahasamund.
10.9 That, this Hon'ble Court may kindly be pleased to quash/set aside the impugned order dated 08.12.2022 passed by State Medical Board (Annexure P/13). 10.10 That this Hon'ble Court may kindly be pleased to issue order/direction/writ and thereby declare the impugned Gazette of India Notification No. 13 May 2019, Part III-Section 4, Page No. 2, Appendix 'H-1" as unconstitutional and ultravires the Rights of Persons with Disabilities Act, 2016."
The writ petition was filed on 16.11.2022 and the amendment application was filed on 12.12.2022 to incorporate prayers No. 10.6, 10.7, 10.8, 10.9 and 10.10.
It is submitted by learned counsel for the parties that today is the last date for taking admission in MBBS course in the mop-up round.
By an interim order dated 05.12.2022, the petitioner was directed to appear before the State Medical Board within a period of three days from the date of receipt of a copy of the order.
The photocopy of the disability certificate issued by the District Medical Board, Rajnandgaon is illegible after the portion 'post 7 electrocution injury'. In the typed copy of the said certificate after the portion "(B) the diagnosis in his/her case is", is kept blank.
Dr. Praveen Kumar Shrivastava, the officer-in-charge of the respondent/State is present and on perusal of the original copy of the disability certificate issued by the District Medical Board, Rajnandagon, he submits that the same is also not very clearly legible, but it appears that diagnosis of the petitioner by the District Medical Board Rajnandagon was "post electrocution injury and amputation of middle finger with weakness of fingers and restriction of wrist joints".
The State Medical Board, after examining the petitioner, recorded that 'post electric burn contracture of right hand' was found and it observed as follows:
"jkT; esfMdy cksMZ ds fo ks'kK fpfdRldksa }kjk vkidk LokLF; ijh{k.k mijkar ,ao vkids }kjk izLrqr fpfdRlk fjiksZV dk voyksdu rFkk ijh{k.k vuqlkj "Post electric burn contracture of right hand" ik;k x;k gS A pwafd vkidk nk;ka gkFk Ik;kZIr HkkfDr vkSj xfr ds jsat izHkkfor gSA fpfdRlk ikB~;dze ds fy;s nksuksa gkFkkas dk v{kq..k gksuk vko ;d gSA vr% Hkkjr jkti=] vlk/kkj.k Hkkx III-[k.M 4] la- 162] 14 ebZ 2019 i`'B la[;k 02 ifjf k'V-t-1 ds fu/kkZfjr ekin.Mksa ds vuqlkj 8 lHkh fpfdRlk ikB~;dzeksa ds fy;s vik= gSA"
Perusal of the above goes to show that it was recorded that there was no sufficient strength in the right hand and there was restriction in wrist movement. Both the hands are essential for pursuing medical course. Reference was made to Gazette of India (Extraordinary) Part III Section 4 No. 162, Page No. 02, Appendix H-1, dated 14.05.2019.
Though, the format of disability certificate to be issued by the State Medical Board in terms of the rules in force provides for percentage of disability to be indicated, in the report of the Chhattisgarh State Medical Board, the percentage of disability is not mentioned.
We are of the considered opinion that it is essential that percentage of the disability is reflected by the Medical Board.
Though, in the first half of today, we had ordered to maintain status quo and directed that the quota meant for the physically handicapped candidate shall not be converted to any other category till 2:15 pm, we have been informed that conversion had taken place on 22.11.2022 to unreserved category, consequent upon the petitioner having been disqualified in the PwD category.
It is also pointed out that though today is fixed for the mop-up 9 allotment of seats, no allotment has been given till now in any of the categories in view of the pendency of this petition.
Ms. Anmol Sharma, learned Central Government counsel has prayed for some time to obtain instructions.
We have been given to understand that after the mop-up round is over, stray round will commence from 17.12.2022 and will end on 20.12.2022.
Having heard learned counsel for the parties and balancing the competing equities as well as to ensure that no seat is wasted, while posting the matter on 19.12.2022 as a fresh case in the top of the list, we order as follows:
1. The respondents will convene a State Medical Board tomorrow i.e. on 16.12.2022 at 10:30 a.m. and the petitioner will appear before the Board. The Board, after examining the petitioner medically, will furnish a certificate on that date itself in accordance with law.
2. Though the PwD seat allotted to the petitioner was converted to the unreserved category, we direct that one seat in the unreserved category shall not be taken to the pool for allotment during the mop-up round. Rest of the seats available in the mop-up round may be filled up. The said unreserved seat will be carried 10 forward to the stray vacancy round. However, the said seat shall not be allotted till 19.12.2022 when further orders with regard to the aforesaid would be passed.
List on 19.12.2022 at the top of the list.
Sd/- Sd/-
(Arup Kumar Goswami) (Arvind Singh Chandel)
Chief Justice Judge
Amit