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Neha Pudil vs Union Of India And Ors on 16 February, 2022

Author: Rajiv Shakdher

Bench: Rajiv Shakdher, Talwant Singh

                          $~27
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    W.P.(C) 2815/2022
                               NEHA PUDIL                                 ..... Petitioner
                                                Through Mr Sunil Dutt Dixit, Adv.
                                                versus
                               UNION OF INDIA AND ORS.                    ..... Respondents
                                                Through Mr Anil Soni, Adv. for R-1 & 2.
                                                        Mr T Singhdev, Adv. for R-5.
                               CORAM:
                               HON'BLE MR JUSTICE RAJIV SHAKDHER
                               HON'BLE MR JUSTICE TALWANT SINGH
                                          ORDER

% 16.02.2022 [Court hearing convened via video-conferencing on account of COVID-19] CM No.8124/2022

1. Allowed, subject to just exceptions.

W.P.(C) 2815/2022 & CM No.8123/2022[Application filed on behalf of the petitioner for interim relief]

2. Mr Sunil Dutt Dixit, who appears on behalf of the petitioner, says that the petitioner has been given provisional admission in the Maulana Azad Medical College [i.e., respondent no.4] in the MBBS course. 2.1 According to Mr Dixit, the impediment in the petitioner's way in getting admission is the certificate of disability, issued by the Vardhaman Mahavir Medical College and Safdarjung Hospital [i.e., respondent no.3]. [See Annexure-P16, appended on page 76 of the case file]. 2.2 According to Mr Dixit, the disability certificate, issued by the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, has pegged the petitioner's disability at 45%. [See page 65 of the case file.] W.P.(C) 2815/2022 1/4 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:20.02.2022 15:25:11 2.3. A perusal of the above-mentioned certificates shows that, while there is a difference between the two certificates vis-à-vis the disability factor, there is no dispute that the petitioner suffers from locomotor disability on account of amputation of his thumb and index finger as also the distal phalanx of the middle finger.

2.4. It is also not disputed that persons suffering disability within the range of 40-80% can avail of Physically Handicapped (PH) quota, which is pegged at 5% in accordance with the extant regulations.

3. According to Mr T Singhdev, who appears on advance notice on behalf of respondent no.5 i.e., National Medical Commission, what is coming in the way of the petitioner is the following in the guidelines regarding admission of students with "Special Disabilities" under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS course, as regards locomotor disability:

"*Attention should be paid to loss of sensations in fingers and hands, amputation, as well as involvement of eyes and corresponding recommendations be looked at.

** xxx xxx xxx ***Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course."

4. On the other hand, Mr Dixit says that the respondents have only evaluated the percentage of benchmark disability suffered by the petitioner and, in the process, missed carrying out the functional evaluation of the petitioner's ability to progress through MBBS course and ultimately be able to work as a doctor.

4.1. In support of this plea, Mr Dixit has relied upon the following judgments:

(i) Judgment dated 27.9.2019, passed by the Punjab and Haryana High Court in CWP No.21299/2019, titled Vishal v. Union of India & Ors.

(ii) Judgment dated 19.12.2018, passed by the Rajasthan High Court in CWP No.15318/2017, titled Ms. Geetika Tanwar v. State of Rajasthan and Ors.

5. According to us, the matter needs examination.

6. Issue notice.

6.1. Mr Anil Soni accepts notice on behalf of respondent nos.1 and 2 while Mr T Singhdev accepts notice on behalf of respondent no.5. 6.2. On steps being taken, notice shall issue to the remaining respondents, via all permissible modes, including e-mail.

7. Counter-affidavit(s) will be filed, within three weeks from today. Rejoinder(s) thereto, if any, will be filed before the next date of hearing.

8. In the meanwhile, the provisional admission granted to the petitioner, if not already cancelled, shall not be disturbed i.e., status quo will be maintained till the next date of hearing.

9. List the matter on 8.4.2022.

10. In the meanwhile, to hasten the proceedings and get more clarity, we are of the opinion that the petitioner can be examined by a medical board, albeit, without prejudice to the rights and contentions of the parties.

10.1. Accordingly, the Medical Superintendent of Dr Ram Manohar Lohia Hospital, New Delhi is requested to constitute a medical board to carry out the functional evaluation concerning the locomotor disability suffered by the petitioner.

10.2 The Medical Board shall ascertain as to whether or not, with the disability that the petitioner suffers, she would be in a position to progress and complete the MBBS course, if granted admission. 10.3 It is, however, made clear that this exercise will not create any equity in favour of the petitioner.

10.4 The Medical Board will furnish its report to the Court, before the next date of hearing.

11. Parties will act based on the digitally signed copy of this order.

12. The Registry will dispatch a copy of this order to the Medical Superintendent, Dr Ram Manohar Lohia Hospital, New Delhi.

RAJIV SHAKDHER, J TALWANT SINGH, J FEBRUARY 16, 2022/pmc Click here to check corrigendum, if any W.P.(C) 2815/2022 4/4 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:20.02.2022 15:25:11