Orissa High Court
D.S. Rashmi Ranjan vs Chairman, J.E.E. 2004 And Ors. on 2 February, 2005
Equivalent citations: 96(2005)CLT363
Author: P.K. Mohanty
Bench: P.K. Mohanty, J.P. Mishra
JUDGMENT P.K. Mohanty, J.
1. In this batch of Writ Petitions, the petitioners call in question the action of the Opp. Parties 1 and 2 in refusing them admission to the M.B.B.S. Course, 2004 under the reserved 3% of seats meant for persons with disabilities in terms of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
2. The petitioners claim that they were brilliant students and had appeared at the Joint Entrance Examination (JEE), 2004 for admission to the M.B.B.S. Course and were eligible to seats reserved under the physically handicapped category being persons with disabilities of required degree. According to the petitioners, under Clause 2.1.3. of the Information Brochure, Joint Entrance Examination 2004, 3% of the total M.B.B.S. seats of three Medical Colleges of the State and B.D.S. stream are reserved for persons with disabilities in consonance with Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Disabilities Act"). The applicants under this category were required to have the disability to the minimum extent of 40% determined by a Medical Board specifically constituted for the purpose. Further, for M.B.B.S./B.D.S. stream, the candidates claiming Locomotor disabilities are only eligible for consideration. The petitioners were called to the Medical Board, but they were not placed in the category of physically handicapped persons on the ground that the percentage of disabilities of the petitioners are not within the range of 50-70% Locomotor disability of the lower limb as stipulated by the Medical Council. The petitioners further claim that there are 10 reserved seats in three Medical Colleges of the State for the candidates coming under physically handicapped category, but only three candidates have been selected and the rest seven, in absence of any physically handicapped category candidates, has to go to the general category. The petitioners claim that in view of the clear provision of stion 39 read with Section 2(t) of the Disabilities Act, the stipulation of 50-70% of the Locomotor Disabilities of the lower limb fixed by the authorities in order to be eligible for consideration under the reserved category for physically handicapped persons is illegal and unauthorized.
3. The Chairman, J.E.E. Committee, 2004 has filed the return denying the claims made by the petitioners. According to the Chairman, on the basis of the degree of disability assessed and determined by the duly constituted Medical Board, the petitioners were found ineligible due to the fact that they did not have required minimum degree of disability of 50-70% prescribed by the Medical Council of India in its guidelines dated 14.7.2003. The guideline was intimated by the Government of India, Ministry of Health and Family Welfare to the Chairman, J.E.E., 2004 for its strict compliance and the said guideline was adopted for implementation by the Statutory Medical Board duly constituted as per Clause 2.1.3. of the Information Brochure. The copies of the letter dated 12.5.2004 and 16.6.2004 have been annexed as Annexures-A and B respectively. It is the stand of the Opposite Party that requirement of 40% disability as provided under Sub-section (t) of Section 2 of the Disabilities Act, 1995, although was incorporated in Clause 2.1.3. of the Information Brochure, but due to the letters in Annexures-A and B of the Medical Council fixing minimum percentage of disability between 50 and 70% of the Lower Limbs, the same was implemented and the petitioners having not come within that disability were found ineligible for admission, under the reserved category.
5. The Medical Council of India (Opp. Party No. 3) has filed a detailed counter affidavit in opposition to the claims made by the petitioners. It is stated that the M.C.I, has been constituted under the provisions of the Indian Medical Council Act, 1956 (hereinafter referred to as "I.M.C. Act") with the objective to regulate and enforce the standard of Medical Education in the Country and to formulate regulations and guidelines on the standard and conduct of Medical Education in India. In due discharge of its statutory obligation under the I.M.C. Act, the M.C.I, has been empowered to frame regulation under Section 33 of the I.M.C. Act. The General Body of the M.C.I., based on the recommendation of the executive Committee was of the view that extending the benefit of reservation should not be allowed to persons suffering from Locomotor disabilities of the upper limbs as the upper limbs are required to elicit sign during the clinical examination and finer movements are desired for conduct of surgical procedures. The General Body also considered the fact that feeling and sensation is an important aspect of clinical diagnosis and treatment and Locomotor disability of the upper limbs would interfere with the same. The Council, after due consideration of all aspects, in letter dated 14.7.2003 laid down the standard and the Central Government has directed various authorities to ensure that the admission of the physically handicapped candidates would be as per the M.C.I, norms as have been provided for in the communication dated 14.7.2003 of the M.C.I.
5. (sic.) According to the M.C.I., it is empowered to fix a criterion for extending the benefits of reservation to the disabled which is higher than that provided for under the Disabilities Act, 1995. In support of the contention a reference has been made to the decision of the Apex Court in Dr. Preeti Srivastava v. State of M.P. and Ors., (1999) 7 SCC 120. It is stated that so long as 3% reservation was given effect to, the Policy of the M.C.I, prescribing higher disability than that provided for under the Disabilities Act would deserve to be upheld since very often it is found that 40% disability provided for under the Disabilities Act is of such a nature that it may amount to grant of an unfair advantage to such persons, thereby defeating the purpose behind the Disabilities Act. The M.C.I, with a view to further the objectives behind the Disabilities Act and at the same time maintain the standards of Medical Education under the I.M.C. Act stipulated 50 to 70% of Locomotor Disability of the Lower Limb only to be eligible to the benefits of reservation. The Medical Council has relied on the decision of a Learned Single Judge of the Delhi High Court in Civil Writ No. 4345 of 2003 and CM. No. 7440 of 2003 dated 11.8.2003 in support of the contention.
6. In view of the pleadings of the parties, the moot questions that need determination are, (i) whether in view of the provision of Section 2(t) and Section 39 of the Disabilities Act, it is permissible for the Medical Council to stipulate that persons suffering from 50 to 70% disability only shall be entitled to the benefits of statutory reservation for physically handicapped or persons with disability and (2) whether such degree of disability could only be confined to Locomotor Disability of the Lower Limbs only in Order to be eligible for such reserved seats.
7. In Order to appreciate the contentions, it is necessary to notice the enactment and relevant provisions made thereunder.
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "Disabilities Act") has been enacted by. the Parliament to give effect to the "Proclamation on the full Participation and Equality of the people with disabilities in the Asian and Pacific Region" to which India was a signatory and it came into force with effect from 7.2.1996. The provisions of this Act and the Rules made thereunder are in addition to and not in derogation of any other law for the time being in force or instructions issued thereunder, communicated or issued for the benefits of the persons with disabilities, in view of Section 72, Section 2(i) of the Act defines disability to mean (a) blindness, (b) low vision, (c) leprosy-cured, (d) hearing impairment, (e) Locomotor Disability, (f) mental retardation and (g) mental illness. Section 2(t) of the Disabilities Act defines a "person with disability" to mean as under:
"persons with disability" to mean a person suffering from not less than forty percent of any disability as certified by a medical authority."
8. Section 39 of the Disabilities Act, requires that all Government Educational Institutions and institutions receiving aid from the Government to reserve at least 3% of the seats for persons with disability. Thus, it is clear from the aforesaid provisions of law that all Government Educational Institutions and institutions receiving Governmental aid are required to reserve minimum 3% of seats for the persons with not less than 40% of disabilities or in other words, persons with not less than 40% of disabilities as defined under the Act are eligible for admission to 3% of seats reserved in educational institutions of the above category meant for persons with disability.
9. The Medical Council of India (MCI) has been constituted under the Indian Medical Council Act {in short 'the IMC Act') as an expert body to control the minimum standard of Medical Education and to regulate their observance. Section 33 of the Act empowers the Council to frame regulations with previous sanction of the Central Government generally to carry out the purpose of the Act as enumerated in Clauses (a) to (n). Section 19(A) authorizes the Council to prescribe the minimum standard of Medical Education for grant of recognized Medical Qualification other than Post Graduate Medical Qualification by Universities or Medical Institutions in India, The scheme of the Act requires the authorities imparting Medical Education and the Universities to follow the standards laid down by the Council and the norms prescribed by the Council are binding on all institutions imparting Medical Education. The Constitution Bench of the Apex Court in Dr. Preeti Srivastava and Ors. v. State of Madhya Pradesh and Ors., (1999) 7 SCC 120 has held that Medical Council of India which is the Apex Technical Body in the field of Medical Education and which is enjoined to provide appropriately qualified Medical Practitioners for serving the suffering humanity to prescribe basic standard of eligibility and qualification for Medical Graduates who aspire for the Post Graduate courses for obtaining higher degrees. Determination of standards in institutions would take in its sweep, the basic qualification or eligibility criteria to admit students to such institutions. In such view of the matter, there can be no room for doubt that the Medical Council of India is vested with the power and is competent to prescribe the minimum standard of a candidate for entry to the Medical Courses like the M.B.B.S. course.
The Apex Court in State of Punjab v. Dayanand Medical College and Hospital and Ors., (2001) 8 SCC 558 held that once the prescription has been made by the M.C.I, fixing a standard in terms of Entry 66, List I, it cannot be diluted by the institutions or the State Government by fixing marks that are lower than that fixed by the M.C.I.
10. Mr. Mohanty, Learned Counsel for the M.C.I, submitted that so long as the minimum 3% reservation is being given effect to, the Policy of the M.C.I, prescribing higher disability than that provided for under the Disabilities Act was within its competence. It is submitted that very often, it is found that 40% of disability provided for under the Disabilities Act is of such a nature that it may amount to grant of unfair advantage to such person thereby defeating the purpose behind the Disabilities Act. For example, it has been stated that loss of a phalanx or phalange of a finger may entitle a candidate to claim 40% disability. The rationale behind the upward revision from 40-60% to 50-70% is that a person with more aggravated disability should be preferred against another who suffers from relatively minor disability. According to the M.C.I., the decision fixing 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 standard of Medical Education under the M.C.I. Act. It is submitted that the General Body of the M.C.I, based on the recommendation of the Executive Committee was of the view that extending the benefit of reservation to persons suffering from the 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 procedures and accordingly, the Council prescribed 50-70% of the Locomotor Disabilities of the Lower Limbs as the eligibility criteria for consideration of a candidate for admission to M.B.B.S. course, reserved for the disabled category.
11. Section 2(t) of the Disabilities Act defines "person with disability" as one who suffers from not less than 40% of any disability as certified by the Medial Authority. Rule 6 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 (hereinafter called the "Disabilities Rules") contemplates that the certificate issued by the Medical Board under Rule 5 shall make a person eligible to apply for facilities, concessions and benefits admissible under the Schemes of the Government or non-Governmental organizations subject to such conditions as the Central or State Government may impose. Thus, a person suffering from not less than 40% of the disability is eligible under the Disabilities Act and the rules made thereunder to apply for the facilities, concessions and benefits available to a person under disability, there being reservation of 3% of seats in M.B.B.S. course for persons under disability. However, the Medical Council took a decision that a person, who suffers from not less than 50% of Locomotor Disability of the Lower Limb is eligible to be considered for admission to the Medical Course, within the scope of reservation of 3% of seats meant for persons with disability or physically handicapped persons. Upper degree of disability i.e., 70% fixed by the Medical Council is not under challenge and otherwise also such a degree of disability as fixed by the Expert Body with which a person can undertake the course, cannot be challenged the question for consideration therefore is, whether the Medical Council in purported exercise of its powers under Section 19(A) of I.M.C. Act as an Expert Body in the field of Medical Education could legitimately take a decision in fixing a higher degree of disability for a person to be eligible to apply for the concession or benefits admissible under schemes of the Government, contrary to the mandate in Section 2(t) of the Act read with Rule 6 thereof.
12. It is submitted by the Medical Council that the rationale behind the upward revision from 40-60% to 50-70% is that a person with more aggravated disability should be preferred from another who suffers from relatively a minor disability and the decision was taken by the Council with a view to further the objective behind the Disabilities Act and at the same time to maintain the standard of Medical Education. Submission is made that very often it is found that 40% of disability provided for in the Disabilities Act is of such a nature that it may amount to grant of an unfair advantage to such person thereby defeating the purpose behind the Disabilities Act. The M.C.I, has misconceived the scope of its power vested under the I.M.C. Act. It is not for the Medical Council to sit in judgment over the wisdom of the Parliament, in fixing the minimum degree of disability at 40% to claim the benefit of reservation as a person with disability nor it is vested with the power and competence to consider and decide as to whether the provision made in the Disabilities Act and the criteria fixed thereunder would defeat the purpose behind the legislation and would amount to grant of unfair advantage to such person. Being an authority created under the I.M.C. Act, the M.C.I, has to function within the limits and scope of the Act itself and not to exceed its jurisdiction in considering and to decide as to whether a beneficial legislation made by an Act of Parliament, is in the interest of the persons with disability. The M.C.I, in purported exercise of its power under the I.M.C. Act by way of laying down the standard of Medical Education cannot take away the right of a person to apply for the facilities, concessions and benefits admissible under the scheme of the Government as is available to him and granted under Section 39 of the Disabilities Act. In our considered opiniorv, the M.C.I, has clearly misconceived the scope of its powers, exceeded its jurisdiction and encroached upon the field occupied under the Central Legislation. The decision of the Medical Council to the extent that a person with minimum 50% disability is entitled to the benefits or concessions available under the Disabilities Act is illegal, arbitrary and without jurisdiction. We, therefore, have no hesitation to quash that part of the decision fixing 50% of the disability instead of 40% as the eligibility criteria for claiming the benefits of reservation for admission to the M.B.B.S. course communicated under the circular dated 14.7.2003 to different institutions and in the circular in that regard of the Central Government dated 12.5.2004.
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. Laying 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 Locomotor Disability of the Upper Limb or with any other disability as in 2(i) of the Act except Locomotor 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 in the Writ Applications. The decision of the Medical Council that person with Locomotor 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 Locomotor Disability of the Lower Limbs only and with no other disability are eligible for admission to M.B.B.S. course therefore cannot be faulted.
14. In such view of the matter, since the State Government and the Chairman, J.E.E. have fixed 50% minimum degree of disability as the eligibility criteria for consideration of a candidate under the physically handicapped category on the basis of the decision of the Medical Council of India, the same has also to be quashed and it is quashed accordingly.
15. In the result, we direct the Opp. Parties 1 and 2 to consider the cases of all such applicants, who have been certified by the Medical Board of having 40-70% Locomotor Disability of the Lower Limbs for admission to the M.B.B.S. Course, 2004 in accordance with their merit position in terms of Clause 2.1.3. of the Admission Brochure, J.E.E., 2004. In view of the interim Order, the unfilled seats reserved under the physically handicapped category have been kept vacant and, as such, the applicants, who are found eligible should be admitted to such seats within a fortnight hence. The direction, for admitting eligible students at this stage has been passed keeping in view the submission of the Learned Counsel for the petitioners that the M.B.B.S. course has started in late October and the X-mas holidays have intervened in the meantime and therefore even though the course has commenced, it would not prevent the students admitted now to make up the course but if the eligible students are not admitted, they will be deprived of their valuable right to prosecute the M.B.B.S. Course and loose one year of their career for no reasons.
The Writ Petitions are allowed to the extent indicated. However, there shall be no Order as to costs.
J.P. Mishra, J.
16. I agree.