Gauhati High Court
Miftahul Abed Khan vs The State Of Assam And 2 Ors on 19 December, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/8
GAHC010220922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7167/2022
MIFTAHUL ABED KHAN
S/O. ALTAB HUSSAIN KHAN
R/O. VILL. AND P.O. BALAGAON
P.S. KALGACHIA
DIST. BARPETA
PIN-781319
ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY COMMISSIONER AND SECY. TO TH GOVT. OF ASSAM
MEDICAL AND EDUCATION RESEARCH DEPTT.
DISPUR
GUWAHATI-781006
KAMRUP (M)
ASSAM.
2:THE DIRECTOR OF MEDICAL EDUCATION AND RESEARCH DEPTT.
SIXMILE
KHANAPARA
GUWAHATI-781022
KAMRUP (M)
ASSAM.
3:THE NATIONAL MEDICAL COUNCIL
REP. BY ITS SECRETARY GENERAL
NEW DELHI.
------------
Advocate for : MR. K A MAZUMDER
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 2 ORS
Page No.# 2/8
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
19-12-2022 Heard Mr. K.A. Mazumder, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing counsel, Health and Family Welfare Department for the respondent Nos. 1 & 2. Also heard Mr. D. K. Baidya, learned counsel appearing on behalf of Mr. A. M. Bora, learned Senior Standing counsel, National Medical Commission of India for the respondent No. 4.
2) Matter pertains to admission in the 1 st year MBBS/BDS Course for the academic Session 2022-2023 in the Government Medical/Dental Colleges of Assam under the 5% reserved quota of 'Persons with Disability' (PwD) (DIVYANG) category under the State quota.
3) The petitioner Miftahul Abed Khan appeared in the National Eligibility-cum-Entrance Test (NEET) Examination, 2022 and secured All India Rank under PwD category at 1927, result of said examination was declared on 07.09.2022.
4) The petitioner has been diagnosed with "Locomotor Disability" with 45% permanent disability in relation to his left arm, left leg, both upper limbs and both lower limbs, with body weakness on his left half and muscle wasting of left upper and lower limb. In that regard, the Medical Authority, Barpeta, Assam under the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India on 19.09.2022 certified to that extent. He has also obtained a Unique Disability ID issued by the Joint Director of Health Services, Barpeta, Assam on 19.09.2022. The petitioner has also obtained Disability Certificate from the authorities of Barpeta Civil Hospital, Kalgachia, Barpeta and Surgeon/Member of the District Medical Board, Barpeta regarding his 45% locomotor disability diagnosed with post polio muscle weakness of left upper and lower limbs. However, the said certificate issued by the Barpeta Civil Hospital, Kalgachia, Barpeta is without any date. As such, the petitioner as a physically disabled person claimed for admission in the 1 st year MBBS/BDS Course in Government Page No.# 3/8 Medical & Dental Colleges of Assam for the Session of 2022-2023 under the 5% reserved quota of PwD category under the State quota as per his entitlement as provided in the guidelines of the Union of India under the Rights of Persons with Disability Act, 2016 and under the provisions of the Medical Colleges and Dental Colleges of Assam (Regulations on Admission into 1 st year MBBS/BDS courses) Rules, 2017 amended in 2022 under the State quota seats of Assam.
5) For that purpose, the petitioner was called for counseling for his admission in the 1 st year MBBS/BDS course in Government Medical & Dental Colleges of Assam for the Session of 2022- 2023 and for his examination to determine his disability. The petitioner accordingly appeared before the concerned Disability Assessment Board on 20.10.2022.
6) On examining the petitioner on 20.10.2022, the said Board assessed that - "the petitioner has 45% of Locomotor Disability having 'Cerebral Palsy with left sided spastic hemiplegia". On making such assessment, the said Board remarked that the petitioner is not eligible for admission in the Government Medical Colleges of Assam as per the NMC Guidelines under the 5% reserved quota of PwD category. Consequently, the Director of Medical Education, Assam in its Educational Notice issued under No. DME/UG/234/ 2022/20668 dated 22.10.2022 notified that the petitioner is not eligible for admission into 1st Year MBBS/BDS Course in the Government Medical and Dental Colleges of Assam for the Session 2022-2023 under the PwD (DIVYANG) category.
7) Being aggrieved with the same, the petitioner has preferred this writ petition.
8) Respondents in the Health and Family Welfare Department of the State filed an affidavit in the matter to which the petitioner has filed his reply.
9) Mr. Gogoi, learned Standing counsel, Health and Family Welfare Department placed the Information Bulletin relating to National Eligibility-cum- Entrance Test (Under Graduate) - 2022 and also the Notification dated 04.02.2019 published in the Gazette of India Extraordinary on 05.02.2019 as well as the Notification dated 13.05.2019 published in the Gazette of India Extraordinary on 14.05.2019, both issued by the erstwhile Board of Governors in super-session of Medical Council of India, presently known as National Medical Commission, pertaining to the Appendix "H" of said Notification dated 04.02.2019 and Appendix "H-1" of said Notification dated 13.05.2019 relating to the "Graduate Medical Education, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997" that relates to "Guidelines regarding Page No.# 4/8 admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS."
10) Appearing on behalf of the National Medical Commission, (erstwhile Medical Council of India), Mr. D. K. Baidya, learned counsel appearing on behalf of Mr. A. M. Bora, learned Senior Standing counsel clarified the stand of the said Commission with regard to the two specific Notifications dated 04.02.2019 as well as 13.05.2019 issued by the erstwhile Medical Council of India pertaining to the Appendix "H" and Appendix "H-1" of the "Graduate Medical Education Regulations, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997", that relate to "Guidelines regarding admission of students with "specified disabilities"
under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS" under Locomotor Physical Disability Type with Specified Disability of (a) Leprosy cured person*, (b) Cerebral Palsy**, (c) Dwarfism, (d) Muscular Dystrophy, (e) Acid attack victims and (f) Others*** such as Amputation, Poliomyelitis etc. and the Asterix* Attention should be paid to loss of sensation in fingers and hands, amputation, as well as involvement of eyes and corresponding be looked at; Asterix** Attention should be paid to impairment of vision, hearing, cognitive function etc and corresponding recommendations be looked at and Asterix*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course - remained unchanged inspite of said Appendix "H" notified on 04.02.2019 was substituted by Appendix "H-1" notified on 13.05.2019.
11). As per the Court's order dated 28.11.2022 passed in this proceeding and the communication No. DME/UG/234/2022/22338 dated 29.11.2022 of the Director of Medical Education, Assam, the Principal-cum-Chief Superintendent of the Gauhati Medical College and Hospital, Guwahati reconstituted the Disability Assessment Board consisting of Professor & Head of the Department of Orthopaedics; Professor of Psychiatric, Professor of Neurology and an Assistant Professor of Haematology of the Gauhati Medical College & Hospital, Guwahati for reassessment of disability status of the petitioner.
12) In pursuance of the Court's order dated 28.11.2022; the petitioner appeared before the said reconstituted Disability Assessment Board on 02.12.2022.
13) After assessing the disabilities of the petitioner for her admission in the 1 st year MBBS Course for the Session 2022-2023 under the 5% reserved quota for Persons with Disabilities Page No.# 5/8 (DIVYANG) category in the Government Medical Colleges of Assam under the State quota, the said reconstituted Disability Assessment Board on examining the petitioner on 02.12.2022 found as follows:-
· that Miftadul Abed Khan is a case of cerebral palsy affecting left upper limb and lower limb resulting in left sided hemiparesis (mild).
· On examination left upper limb motor power (strength) is 4/5 = 6% Physical impairment, no sensory deficit with normal range of movement.
· On examination of Left lower limb motor power is 4/5 = 6% Physical
impairment (Pl)
· Slight restriction (20%) of range of motion at left ankle joint which is 4% Pl
(20%x20=4).
· Combining the values of lower limb 6+4 (90-6)/90 = 9.7
· Combining the values of upper limb and lower limb 9.7 + 6 (90-9.7)/90 = 15
· Extra points - Shortening of left lower limb = 4% Pl,
· Adding 15+ 4 = 19%
· The gross locomotor disability percentages amounts to 19%.
· Therefore, the said candidate does not fall under PwD (DIVYANG) category
according to "Board of Governors in super-session of Medical Council of India Amendment Notification No. MCI-34(41)/2019-Med./112862, dtd. 13/05/2019 Appendix H-1) · The Disability percentage was calculated as per Ministry of Social Justice and Empowerment [ Department of Empowerment of person with disabilities (DIVYANGJAN)] Notification S.O.76 (E) dtd. 04/01/2018 page NO. 70, 69, 84 respectively. (all copies are enclosed for your ready reference.)
14) The said reconstituted Disability Assessment Board by its report dated 02.12.2022 opined that - the petitioner does not fall under PwD (DIVYANG) category according to "Board of Governors in super-session of Medical Council of India Amendment Notification No. MCI-
34(41)/2019-Med./112862, dtd. 13/05/2019 Appendix H-1, where the disability percentage was calculated as per the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities) (DIVYANGJAN)] Notification S.O.76 (E) dated 04.01.2018. As per the Notifications dated 04.02.2019 (Appendix-H) and dated 13.05.2019 (Appendix H-1), the Guidelines regarding admission of Students with specified disabilities under the Rights of Persons Page No.# 6/8 with Disabilities Act, 2016 with respect to admission in MBBS, requires 40 - 80% of disability range to be eligible for medical course under the PwD quota and if the disability range is above 80% then a candidate is not eligible for medical course. Further, if disability range is less than 40%, a candidate is eligible for medical course but not eligible for PwD quota. Moreover, Asterix** relating to specified disability of cerebral palsy under locomotor disability notified in the said appendixes- H and H1 noted above, provides that attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations to be looked at.
15) On being enquired as to whether Asterix** of the Appendix-H of the Guidelines regarding admission of Students with specified disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS, vide Notification dated 04.02.2019 shall be applicable to the case of the petitioner or not, both the counsels representing the respondents in the Health and Family Welfare Department of the State as well as National Medical Commission submitted that the same is applicable to "Specified Disability" like - cerebral palsy under Locomotor Type of Disabilities including that of the petitioner, who is having such Locomotor disability of 19% which is less than 40% as found by the concerned reconstituted Disability Assessment Board on 02.12.2022.
16) Mr. Gogoi, learned Standing counsel for the respondents in the Health and Family Welfare Department, Assam stated that the Appendix-V of the Information Bulletin relating to National Eligibility-cum-Entrance Test (Under Graduate) - 2022 contains the Notification dated 13.05.2019 issued by the Medical Council of India pertaining to the Appendix "H-1" of the "Graduate Medical Education Regulations, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997", that relate to "Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS" under different types of physical disabilities including the Locomotor Physical Disabilities at Serial No.1, which clearly reflects that to consider a student for admission in MBBS course with Specified Locomotor Disabilities under the Rights of Persons with Disabilities Act, 2016 requires disability range of 40 - 80% that is essential to be considered for eligible for medical course under PwD quota, about which the petitioner is aware of.
17) Mr. Gogoi, learned Standing counsel for the respondents in the Health and Family Welfare Department, Assam also stated that since the Locomotor disability of the petitioner as found by Page No.# 7/8 the reconstituted Disability Assessment Board on 02.12.2022 is 19%, that is less than 40% of disability range, therefore, the petitioner though eligible for medical course but not eligible under PwD quota.
18) On the other hand, Mr. Mazumder, learned counsel for the petitioner submitted that since the Disability Assessment Board on 20.10.2022 found that the disability of the petitioner is 45% caused by cerebral palsy under Locomotor Disability, he is eligible for Medical Course, eligible for PwD Quota as provided in both the Notifications dated 04.02.2019 as well as 13.05.2019, the relevant Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS issued by the Medical Council of India. Mr. Mazumder, in support of his argument relied on the Judgment of Kerala High Court in the case of Aswathy. P -Vs- Union of India and others, decided on 25.01.2021.
19) Considered the arguments of the parties as well as the judgments and decisions relied by them. The Information Bulletin relating to National Eligibility-cum-Entrance Test (Under Graduate)
- 2022 contains various provisions in different Chapters and Appendixes including the counselling, provisions, facilities and reservation policy for admission to MBBS and BDS courses for admission under State Quota Seats as well as for candidates claiming the PwD category.
20) The petitioner claimed for Admission in the 1st year MBBS/BDS course for the academic session of 2022-2023 under the State Quota Seats reserved for PwD category having his Locomotor Physical Disability that is more than 40% and less than 80%.
21) It is seen that the petitioner appeared before the reconstituted Disability Assessment Board for his physical examination on 02.12.2022 in terms of the order dated 28.11.2022, being agreed with such re-examination about his physical disabilities as he was aggrieved by his examination report dated 20.10.2022 of the Disability Assessment Board. The Disability Assessment Boards that examined the petitioner consists of experts in the medical field, who have opined that the petitioner is not eligible for PwD quota for his medical admission as on his examination, the reconstituted Assessment Board found his disability to be of 19% only.
22) It is also seen that the judgment of the Kerala High Court in the case of Aswathy. P -Vs- Union of India and others, relied by the petitioner relates to a person suffering from Spastic Cerebral Palsy Triplegia with 63.3% disability; whereas in the present case, the petitioner suffers Page No.# 8/8 from cerebral palsy affecting left upper limb and lower limb, resulting in left sided hemiparesis (mild) with disability of 19% and therefore, the petitioner though entitle for admission in the medical course but not eligible under PwD quota in terms of the Appendix-H notified on 04.02.2019 and Appendix-H1 notified on 13.05.2019, both issued by the Medical Council of India.
23) The reconstituted Disability Assessment Board consists of medical experts who examined physical disability of the petitioner and found that his disability range is 19% that makes him eligible for admission in MBBS course, but not eligible as a student with "specified disabilities"
under the Rights of persons with Disabilities Act, 2016 under the 5% reserved quota for PwD category.
24) It is also seen that there is no allegation of mala-fide against the reconstituted Disability Assessment Board consisting of medical experts that examined the physical disability of the petitioner for his admission in the MBBS course under PwD category.
25) It is well settled by the Hon'ble Supreme Court that when the experts in the field have opined, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts.
26) In the present case, the reconstituted Disability Assessment Board consisting of medical experts, after examining him, opined that the petitioner though eligible for medical admission, but not eligible under the PwD quota and as such, the Court in exercise of the power under Article 226 of the Constitution of India cannot seat as an appellate authority against the opinion formed by such medical experts.
27) Accordingly, this writ petition stands dismissed.
JUDGE Comparing Assistant