Calcutta High Court (Appellete Side)
Kaunain Nawaz Raza vs Union Of India & Ors on 22 August, 2019
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02
22-08-2019
Court No. 37
Samrat
M.A.T 1202 of 2019
WITH
C.A.N 8267 OF 2019
Kaunain Nawaz Raza
-Vs-
Union of India & Ors.
Mr. Biswaroop Bhattacharya,
Mr. Pratik Majumder
... For the Appellant.
Mr. Tapan Kumar Mukherjee, Ld. A.G.P,
Mr. Gourav Das
... For the State.
Mr. Indrajeet Dasgupta
... For Union of India.
Mr. Indranil Ray,
Mr. Sumit Kr. Ray
... For Medical Council of India
Mr. Devakinandan Maity
... For the University
We have heard the learned Counsel for the parties and
considered the materials on record.
This appeal has arisen out of an order dated 14th
August, 2019 in a writ petition filed by one of the
prospective candidates for admission in a medical college.
The writ petitioner suffers from hearing impairment. He
participated in the National Eligibility-Cum-Entrance (UG)
Test-2019 (in short, NEET) under general category and sub
category of Persons with Disabilities (in short, PwD). After
he became successful, he was asked to appear before a
medical board constituted by the Institute of Post Graduate
Medical Education & Research (In short, IPGME&R) as per
the notification issued by the Government of India (in short,
the said medical board) issued under The Rights of Persons
with Disability Act, 2016 and a disability certificate was
issued by the said board as per notification dated 5th
February, 2019 on 24th June, 2019 stating inter alia that
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his disability the range is 28.68% and the petitioner is not
eligible for admission in the medical course.
This report appears to have weighed with the learned
Single Judge in vacating the earlier interim order by which
the interim order was passed on 25th July, 2019 directing
the respondents to keep one seat in State Quota and under
PwD category vacant.
The report of the medical board dated 5th August, 2019 was issued pursuant to the order passed by the learned Single Judge on 25th July, 2019 on the basis of the submission made on behalf of the Medical Council of India that Medical Council of India had issued a fresh notification dated 13th May, 2019 and in terms of the said notification the medical board is the authority to decide the hearing disability of the appellant. The learned Single Judge, accordingly, directed the petitioner to approach the respondent no. 3 and to appear before the medical board on 31st July, 2019 and the said board was directed to examine the petitioner and submit a report upon considering the petitioner's disability in terms of the new notification dated 13th May, 2019.
We have seen the new notification dated 13th May, 2019. Under the new notification, persons with hearing disability of more than 40% would be eligible to pursue MBBS course and may be given reservations, subject to the condition that the hearing disability is brought to a limit of less than the benchmark of 40% with aid of assistive device. In addition to this, the individual should have a Speech Discrimination Score (SDS) of more than 60%.
We have perused the medical certificate dated 5th August, 2019 which appears to be the basis for vacating the interim order. The medical board consisting of three doctors have filed a report which reads:-
"Find investigation & assessment showed the following result:
% Disability (hearing impairment) 51% (without Aid) with SDS% = 30% (without Aid) 62.23% (with Aid) with SDS% = 30% (without Aid) Hence as per the Gazette of India dated the 5th Feb, 2019 & the 28th Dec, 2016 (RPWD act) the candidate is not eligible for admission in medical course as per the MCI/DCI guideline.3
We carefully examined the candidate & this is the only mode of investigations to get the actual report regarding disability assessment."
We are at a loss to understand how the disability of 51% (without Aid) could increase to 62.23% (with Aid) with Speech Discrimination Score remaining at 30% in both cases without aid. The report doesn't say that without aid what would be the SDS percentage. Normally, with aid the hearing capacity would enhance and the percentage of disability would come down. Prima facie, we are of the view that the said report suffers from non application of mind and Learned Counsel for the respondents are unable to justify the report and / or give any explanation for the apparent discrepancy in the report.
The learned Counsel appearing on behalf of the university has submitted that there is no vacancy available in the College of Medicine & Sagar Dutta Hospital, Kamarhati in terms of the earlier interim order. The learned Counsel is unable to satisfy us that the seat, in fact, has been filled up and the name of the candidate selected during counseling and admission have also not been disclosed.
On that basis, we restore the interim order passed by the learned Single Judge on 25th July, 2019. The interim order shall continue for a period of four weeks or until further order, whichever is earlier.
Let this matter be listed before the Regular Bench on 3rd September, 2019.
(Hiranmay Bhattacharyya J.) (Soumen Sen, J.)