Chattisgarh High Court
Anjali Sonkar vs State Of Chhattisgarh on 19 December, 2022
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 4849 of 2022
1. 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
6. State Medical Board, Sanchalanalay, Chikitsa Shiksha,
Chhattisgarh, Raipur, Chhattisgarh
7. District Medical Board, Rajnandgaon, Chhattisgarh
---- Respondents
For the petitioner : Mr. Dhiraj Kumar Wankhede,
Advocate with Shri Sahil Singh &
Ms. Sushma Gupta, Advocates
For Respondent Nos. : Mr. Raghavendra Pradhan,
1, 3, 4, 6 &7/State Additional Advocate General
For Respondent No.2/ : Miss. Anmol Sharma, Advocate
UOI
For Respondent No.5 : Mr. Ranbir Singh Marhas,
Advocate
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.
2
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
19/12/2022
Per Goutam Bhaduri, J
1. The student who appeared in NEET- 2022 has sought for seeking admission under the PwD (Person with Disability) Quota which was disallowed by the State.
2. Today the case was assigned by Hon'ble the Chief Justice and since the winter holidays are intervening and the urgency was projected, the case was heard finally today itself, as the counseling process would be closing on 21.12.2022.
3. The petitioner claims that she possessed the certificate of disability issued by the District Medical Board, Rajnandgaon. The petitioner seeks M.B.B.S. admission in the Government Medical College, Mahasamund, C.G., under the PwD category. Along with writ has been sought that Rule 5 (2) (b) of the Chhattisgarh Chikitsa, Dant Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak Pravesh Niyam, 2018 (in short 'the Rules, 2018'), which was published in the State Government Gazette dated 25.05.2018 be declared as ultra vires to the provisions of the Rights of Persons with Disabilities Act, 2016 (for short 'the Act, 2016'); further relief is also sought that the certificate of disability issued by WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 3 the District Medical Board, Rajnandgaon, under Rule 18 of the Rights of Persons with Disabilities Rules, 2017 (for short 'the Rules, 2017') be declared as valid and legal; the petitioner also sought that the notification dated 13.05.2019 issued by the Government of India be declared as unconstitutional and ultra vires to the provisions of the Act, 2016. The petitioner further seeks quashment of the order dated 08.12.2022 passed by the State Medical Board.
4. The facts of the case in brief are that the petitioner appeared in the NEET examination on 17.07.2022. In the year 2013 the petitioner met with an electric shock wherein her middle finger of right hand got damaged hence she sustained 40% disability. On 07.09.2022 the results of the NEET was declared. In the month of October, 2022 the petitioner, who belongs to O.B.C. category, filled up OnLine application form mentioning her college choice under the PwD category with a certificate issued by the team of doctors of District Medical Board, Rajnandgaon dated 27.12.2019. According to the petitioner the said disability certificate of 40% was duly annexed along with the documents. Thereafter, she was qualified under the O.B.C.-NCL category. She further was entitled to be considered in hold of PwD certificate issued by the District Medical Board, Rajnandgaon, however, during WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 4 the process of counseling her candidature was rejected on the following grounds:-
▪ Disability certificate produced by candidate is made by the District Medical Board, Rajnandgaon in respect 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.
▪ 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.
5. It has been contended on behalf of the petitioner that the certificate was initially issued under Form -V appended to Rule 18 (1) of the Rules, 2017, therefore, the same was in pursuance of the Act, 2016. It is stated that in such certificate the petitioner was shown with 40% permanent locomotor disability. It is stated that the said certificate was not accepted for the reason that it is not issued by the State Medical Board, as the format appended to the Rules, 2018 speaks about production of certificate by the State Medical Board. He would submit that the said Rules, 2018, therefore, is ultra vires to the Act, 2016. He would further submit that WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 5 Rule 5 speaks that before counseling, three months old certificate would not be considered but that issue has now been settled by order dated 05.12.2022 and thereafter on 15.12.2022, wherein the petitioner was asked to appear before the State Medical Board and the Medical Board has issued the certificate. Learned counsel would submit that despite issuance of medical certificate, the medical board has failed to take into account the requirement under the Act, 2016, Rules, 2017 and the Appendix H-1 and by-passed the very necessity of requirement. Therefore, in view of such fact, the new certificate the vires to Appendix H-1 which was called in question may not arise, but the basis on which the certificate has been issued and petitioner has been disqualified is under challenge.
6. Learned counsel for the petitioner would further submit that the certificate having been issued subsequently and original certificate of disability when was submitted at the time of counseling satisfies the requirement of Rule 7 (iii) of the Rules, 2018 and fresh certificate though submitted by order of Court satisfies the requirement. Therefore, the petitioner be admitted to the M.B.B.S. course under the PwD Quota.
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors. 6
7. Learned counsel appearing for the State per contra, would submit that the petitioner was required to challenge the Rule 5 (2) (b) (v) as also Rule 7 (iii) of the Rules, 2018. He would further submit that the certificate of the State Medical Board was issued pursuant to the notification to Appendix H-1, which was in extraordinary Gazette notification of India Part III issued by the Medical Council of India. He would also submit that in absence of any challenge to other Rules, the petition is liable to be dismissed. He would submit that according to the fresh certificate issued to the petitioner by the State Medical Board, she was found to be not qualified. As per Appendix H-1 both hands are required to be intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course. The rejection of the candidature of the petitioner cannot be questioned in this petition.
8. Learned counsel appearing for respondent No.5 would submit that the certificate issued by the State Medical Board is not in conformity with the Gazette notification issued by the Government of India, despite order passed by this court. He would further submit that, on going through the said certificate, it is manifest that the State Medical Board failed to discharge its duty. He would submit that since the WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 7 petitioner has not challenged the vires of the notification issued by the Central Government, they may not be required to answer further query of the Court.
9. Learned counsel appearing for the Union of India would submit that in view of the submission made by the petitioner that she do not want to challenge the vires of the notification dated 13.05.2019 they may not be required to answer any query of the Court.
10. We have learned counsel for the parties at length and perused the documents appended thereto.
11. Initially the disqualification in admission to medical college was challenged that the petitioner holds the necessary certificate from the District Medical Board and Rule 5 (2) (b)
(i) of the Rules, 2018 which disqualifies the petitioner for disability in the upper limb is ultra vires to the Act, 2016.
12. Perusal of the cancellation of candidature of the petitioner, in the remark column it is shown that the disability certificate produced by candidate is made by the District Medical Board, Rajnandgaon is of upper limb deformity to the extent of 40% and coupled with the fact that it was written that since according to the notification No.F-21-02/2018/09/55-4 dated 25.05.2018 which is a notification of the State Government bars the candidate with a disability of upper WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 8 limb as such the petitioner was not qualified. The Second reason was that the disability certificate was produced by the candidate is not issued by the State Medical Board as per Annexure 4 of the Rules, 2018.
13. Before we avert to the said issue to know the background, the proceedings would show, when the case was taken up initially on 05.12.2022 the Court has passed the following order:-
Perusal of the documents attached with the petition show that permanent disability certificate dated 27.12.2019 was produced by the petitioner wherein it was shown to have disability to the extent of 40% of upper limb. This Certificate has not been accepted by the State for the reason it has not been issued by the State Medical Board. Prima facie, subject to final adjudication to the finding on vires of Rules as of now as laid down in the case of Dolly Chhanda (Supra) the Supreme Court observed that depending upon the facts of case, there can be some relaxation in matter of submission of proof. It is not a case where the disability has been cured, therefore, for all practical purpose petitioner, if was declared disabled at earlier point of time that still continues, consequently, in view of law laid down by the Division Bench of this Court in the case of Nikhil Kumar Naik Versus Union of India & ors. {WPC No.5207 of 2022, decided on 02.12.2022} mere rejection of the certificate only because it was produced beyond the period of three months prior to the date of registration cannot be given a way. As it is observed earlier, the disability if continues the benefit would accrue to the petitioner as her right has been protected under the Act, 2016, and such protection WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors.9
cannot be shelved on the ground of procedural lacuna which the Supreme Court has also held that Rules & Procedures are hand made procedure and therefore, the qualification & right cannot be given a back seat. The concerned respondent authority i.e. Respondent No.6 therefore shall be obliged to examine the petitioner about her disability and subsequent to it the petition would be adjudicated on merits. The petitioner shall appear before the State Medical Board within a period of three days from the date of receipt of the copy of this order.
14. After 05.12.2022 the petitioner was examined by the State Medical Board and this Court by observing the disability certificate passed the following order on 15.12.2022:-
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 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 WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors.10
"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 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 WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors.11
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 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 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.
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors. 12
15. The Court having not satisfied with the certificate had observed that the petitioner again be examined by the State Medical Board on 16.12.2022 and since the PwD seat allotted to the petitioner was converted to the Unreserved Category, it was directed that one seat in the Unreserved Category shall not be taken to the pool for allotment during the mop up round.
16. The Rules, 2018 attached as Annexure 4, wherein at the top of it the Form prescribed that the certificate to be issued by the State Medical Board which reads as under:-
izk:i jkT; esfMdy cksMZ izek.k&i= NRrhlx<+ jkT; esfMdy cksMZ lapkyuky; fpfdRlk f'k{kk] NRrhlx< +Qksu ua- 0771&2234451] QSDl ua- 0771&2222212 [email protected] dzekad@ @lafpf'k@ jk;iqj] fnukad@ izek.k i= nks ikliksVZ lkbZt QksVksxzkQ ;g izekf.kr fd;k tkrk gS fd Jh -------------------------------------------- firk&Jh
--------------------------------- mez& ---------------------------------- o"kZ ¼lR;kfir QksVksxzkQ½ ds vkosnu fnukad -------------------- ds lkFk layXu ftyk@laHkkxh; esfMdy cksMZ ds izek.k i= dzekad ----------------- fnukad ------------------- ds ijh{k.k ,oa vkosnd ds iw.kZ ijh{k.k mijkar mudh 'kkjhfjd fu%'kärrk --------------- ikbZ xbZA mudh dqy fu%'kärrk -------------- izfr'kr gSA igpku dk fu'kku & --------------------------------WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.13
¼v/;{k½ ¼lnL;½ ¼lnL;½
jkT; esfMdy cksMZ jkT; esfMdy cksMZ jkT; esfMdy cksMZ
17. The Act, 2016 named Rights of Persons with Disabilities Act, 2016 was promulgated with the object that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) over a period of time, the conceptual understanding of the rights of persons with disabilities has become more clear and there has been worldwide change in approach to handle the issues concerning persons with disabilities. The United Nations adopted its Convention on the Rights of Persons with Disabilities laying down the principles to be followed by the States Parties for empowerment of persons with disabilities. The India was signatory to the convention. The salient features with its bill replaced the Act, 1995 w.e.f 19.04.2017 and Act was enacted to give effect to the United Nations convention on the Rights of Persons With Disabilities and for matters connected therewith or incidental thereto. More rights have been conferred on the disabled persons and more categories have been added. Access to justice, free education, role of local authorities, National Fund and the State Fund for persons with disabilities have been created. 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors.14
disabilities and the role of the States, local authorities, educational institutions and the companies. The Supreme Court in the matter of Justice Sunanda Bhandare Foundation Vs. Union of India reported in {(2017) 14 SCC 1} has laid down the empahsis to implement the object.
18. Section 2 (q) (r) (s) (t) and (zc) of the Act, 2016 are quoted below for ready reference :
(q) "notification" means a notification published in the Official Gazette and the expression "notify" or "notified" shall be construed accordingly;
(r) "person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;
(s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;
(t) "person with disability having high support needs"
means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support;
(zc) "specified disability" means the disabilities as specified in the Schedule;
19. The Rules, 2017 named Rights of Persons with Disabilities Rules, 2017 was framed in exercise of power conferred by sub-sections (1) & (2) of Section 100 of the Act, 2016. Rule 18 of Rules, 2017 purports the issue of certificate of WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 15 disability and Rule 19 prescribed that certificate issued under Rule 18 to be generally valid for all purposes. Reading of the aforesaid rules would show that on receipt of an application under Rule 17, the medial authority or any other notified competent authority shall, verify, the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines. Perusal of medical certificate dated 27.12.2019 issued in Form-V by the District Medical Board, Rajnandgaon, which was submitted by the petitioner, described that the petitioner has 40% permanent locomotor disability. This certificate was issued to the petitioner though was dated 27.12.2019 but could not be given a precedent in view of the principles laid down by the Supreme Court in the matter of Dolly Chhanda Vs. Chairman, JEE {(2005) 9 SCC 779} wherein the Court observed that every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. This Court in such background of the fact directed to verify the certificate about the authenticity and directed the petitioner by order dated 05.12.2022 to appear before the State Medical Board, wherein the petitioner was found to be disabled to the extent of 40% at the first instance.
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors. 16
20. Rule 5 (2) (b) (v) purports that before the counseling three months old certificate shall not be considered is predominantly on the ground that any fake certificate may not be produced or any disqualification continues. In the instant case, since the disqualification i.e. disability continues and has not cured till the petitioner was examined by the State Medical Board, Rule 5 (2) (b) (v) cannot be given strict interpretation to reject the candidature of the petitioner.
21. Perusal of the orders dated 05.12.2022 & 15.12.2022 as quoted above would show that the petitioner was directed to be examined by the State Medical Board and pursuant to which one certificate though was produced, the Court was not satisfied and has again asked the petitioner to appear before the State Medical Board on 16.12.2022 and pursuant to which the following certificate was issued:-
NRrhlx<+ jkT; esfMdy cksMZ lapkyuky; fpfdRlk f'k{kk] NRrhlx<+ iqjkuk ulsZl gkWLVy] Mh-ds-,l- Hkou ifjlj jk;iqj N0x0 Qksu ua- 0771&2234451 [email protected] dzekad@12358@lafpf'k@fu-l-@2022 jk;iqj] fnukad 15 DEC 2022 @@izek.k i=@@ ;g izekf.kr fd;k tkrk gS fd dq- vatyh lksudj] firk&Jh jkeHkxr lksudj] mez&19 o"kZ] efgyk ¼lR;kfir QksVksxzkQ½ ds vkosnu fnukad 12-12-2022 ds lkFk layXu ftyk esfMdy cksMZ jktukanxkao ¼N-x-½ ds izek.k&i= dzekad 2447 fnukad 27-12-2019 ds ijh{k.k ,oa jkT;WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.17
esfMdy cksMZ ds fo'ks"kK fpfdRldksa }kjk vkosfndk dk iqu% LokLF; ijh{k.k mijkar rFkk vkosfndk }kjk izLrqr fpfdRlk fjiksVZ dk voyksdu rFkk ijh{k.k ds vk/kkj ij mUgsa "Post electric burn contracture of right hand" ik;k x;k] mudh vLFkk;h (Temporary) fu%'kDrrk 40% (Forty Percent) gSA pwafd vkosfndk dk nk;ka gkFk i;kZIr 'kfDr vkSj xfr ds jsat izHkkfor gS tks fd Hkkjr dk 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 fpfdRlk ikB~;dze ds fy;s nksuksa gkFkksa dk v{kq..k gksuk vko';d gSA vr% lHkh fpfdRlk ikB~;dzeksa ds fy;s vik= gSA igpku dk fu'kku& Black mole over left forearm. ¼;g izek.k i= dsoy Nursing/NEET Medical Counseling ds fy, gh tkjh fd;k tkrk gS] vU; iz;kstuksa gsrq ekU; ugha gksxkA½ ¼MkW- fo".kq nRr½ ¼MkW- r`fIr uxsfj;k½ ¼MkW- fouhr tSu½ lapkyd fpfdRlk f'k{kk ,oa vf/k"Bkrk izk/;kid ,oa foHkkxk/;{k v/;{k jkT; esfMdy cksMZ] ia-t-us-le`fr fpfd-egk-jk;iqj ,oa vfLFkjksx NRrhlx<+ lnL; jkT; esfMdy cksMZ]N-x- ia-t-us-le`fr fpfd-egk-
jk;iqj ,oa lnL; jkT;
esfMdy cksMZ]N-x-
22. The Appendix H-1 is a guideline regarding admission of student with 'specified disabilities' under the Act, 2016 with respect to admission in M.B.B.S. Course. Appendix H-1 lays down the type of disabilities, which reads as under:-
Appendix "H - 1"
Guidelines regarding admission of students with "Specified Disabilities" under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS Course.
Note :WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.18
1. The "Certificate of Disability" shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 15th June 2017.
2. The extent of "specified disability" in a person shall be assessed in accordance with the "Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)" notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 4th January 2018.
3. The minimum degree of disability should be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability.
4. The term 'Persons with Disabilities' (PwD) is to be used instead of the term 'Physically Handicapped'(PH).
S.No Disability Types of Specified Disability Disability Range
Type Disabilities
Eligible for Medical Eligible for Medical Course, Not Eligible
Course, Not Eligible for PwD Quota for Medical
Eligible for PwD Course
Quota
1. Physical A. Locomotor a. Leprosy cured Less than 40% 40-80% disability More than
Disability Disability person* disability 80%
including
Person with more than 80%
Specified
disability may also be allowed
Disabilities b. Cerebral Palsy** on case to case basis and their
(a to f)
functional competency will be
determined with the aid of
c. Dwarfism assistive devices, if it is brought
below 80% and whether they
possess sufficient motor ability
d. Muscular as required to pursue and
Dystrophy complete the course
satisfactorily.
e. Acid attack
victims
f. Others*** such
as Amputation,
Poliomyelitis, etc.
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors.19
* 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.
** Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendation be looked at.
*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course.
B. Visual a. Blindness Less than 40% - Equal to or
Impairment disability More than
(*) 40% Disability
b. Low vision
C. Hearing a. Deaf Less than 40% - Equal to or
impairment disability More than
@ 40% Disability
b. Hard of hearing
(*) Persons with Visual impairment / visual disability of more than 40% may be made eligible to pursue MBBS Course and may be given reservation, subject to the condition that the visual disability is brought to a level of less than the benchmark of 40% with advanced low vision aids
23. On an earlier occasion, when the petitioner filed disability certificate in Form-V which is in conformity with the Act, 2016, it was discarded for the reason it was stated that she had a 40% permanent locomotor disability in upper limb. Rule 5 (2) (b) (i) of the Rules, 2018 disqualifies any person with a disability in upper arm. Appendix H-1 which is issued by the Board of Governors in super-session of Medical Council of India dated 13.05.2019 do not carve out any exception for the persons who have disability to the upper arm.
24. Perusal of the certificate which was subsequently issued to the petitioner by the State Medical Board when is compared to the notification dated 13.05.2019 issued by the Government of India in type of disabilities clause 1 i.e. WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 20 locomotor disability in clause (f) which covers the amputation, poliomyelitis, etc. and both the hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course. In the disability range category which is under that head the eligible for medical course for PwD quota firstly should be less than 40% disability. Here the petitioner holds 40% disability and the second clause 40-80% disability is further defined that persons with more than 80% disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices, if it is being used, to see if it is brought below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily. Consequently, the measurement specified disability cannot be read in isolation to disability range. It further do not make out a category for upper arm in totality.
25. In the certificate issued by the State Medical Board simply made an observation that the petitioner do not have sufficient power in right hand and range is affected. It is not the case that the petitioner's hands are amputated but her one finger particularly has been amputated due to electrocution for which she suffered disability of 40%. Whether petitioner had WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 21 sufficient strength and range of motion under the disability range should have been considered by State Medical Board in parallel to the disability range and the norms laid down. The certificate of State Medical Board is completely silent though it has referred to Appendix H-1.
26. In such facts & situation, it appears that the State Medical Board despite the repeated orders passed by this Court did not discharge its duty which was required. The notification issued by the Central Government named the Graduate Medical Education Regulations (Amendment) 2019 do not lay down that the person would be disabled in case he has disability in the upper arm but instead the Appendix H-1 prescribed certain criteria and ways & measures for computation of disability, therefore, Rule 5 (2) (b) (i) of the Rules 2018 which stipulates that a person would be completely disqualified suffering with disability of upper arm would be discriminatory and ultra vires to the provisions of the Indian Medical Council Act, 1956 as also the notification dated 13.05.2019 issued by the Government of India.
27. For the sake of convenience, the provisions of Rule 5 (2) (b) of the Rules, 2018 named Chhattisgarh Chikitsa, Dant Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 22 Pravesh Niyam, 2018 is quoted below:-
5- lhVksa dk vkj{k.k %& xxx xxx xxx ¼2½ lHkh Jsf.k;ksa esa lSfud laoxZ ds fy, 3 izfr'kr] Lora=rk laxzke lsukuh laoxZ gsrq 3 izfr'kr] fnO;kaxtu laoxZ gsrq 5 izfr'kr ,oa efgyk laoxZ gsrq 30 izfr'kr {kSfrt vkj{k.k gksxkA xxx xxx xxx ¼c½ Hkkjrh; fpfdRlk ifj"kn ¼,e-lh-vkbZ-½ ds izfrekudksa ds vuqlkj fuEufyf[kr v'kärk;sa ¼fnO;kaxtu½ ik= ugha gSa&
(i)Åijh vax fnO;kaxtu
(ii)n`f"Vckf/kr fnO;kaxtu
(iii)cf/kjh; fnO;kaxtu
(iv)fupys vax dh 70 izfr'kr ls vf/kd fnO;kaxtu
(v)dkmaflfyax ds le; 3 ekg ls vf/kd iqjkuk ik=rk izek.k i=A
28. Further reading of certificate issued by the State Medical Board dated 16.12.2022 shows that post electric burn contracture of right hand and temporary disablement to 40% has been shown. The said certificate when is compared with the certificate issued by the District Medical Board, Rajnandgaon in 2019, which was at the time of initial counseling is not in conformity with each other though the certificates have been issued by the team of doctors in both the cases.
WPC No. 4849 of 2022
Anjali Sonkar Vs. State of Chhattisgarh & Ors. 23
29. It is pertinent to note that Medical Course is one of the most coveted professional courses, and no authority, may it be a body of experts, can disqualify or declare any student ineligible for the medical course by a stroke of pen, without assigning any reason. The certificate issued by the State Medical Board, which is not in conformity with the notification, issued by the Central Government, casual remarks have been made.
30. It is appropriate to mention that like any other citizen, persons with disability have also the right to get not only the basic education but also higher education. Every person shall be presumed to be capable of learning, and denial of opportunity to pursue a course which one seeks to undertake on the ground of disability would amount to denial of opportunity to learn, and would be discriminatory. As far as persons with disability are concerned, if only they are given education, they will be able to lead an independent, economically self sufficient, productive and fully participatory life without depending on others.
31. When a candidate has disability to the extent of 40% in the upper arm the candidate cannot be denied the right accrued in his/her favour and apart from that surgical and clinical faculties a person can discharge other faculty of medical WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 24 science.
32. It is the trite law that when the experts in the field have opined against the petitioner, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts. However, when the experts' opinion is not in conformity with the laid down procedure then the report of an expert cannot be given a way to precede over. The petitioner has shown to be suffering with 40% disability for which as per the Central Government's notification she is entitled and even the above disability over the 40% to the extent of 80% disability can be measured to have been reduced by assistive device. So the range of motion if can be reduced with the assistive device, one would be entitled to be considered under the PwD quota.
33. The Supreme Court in the matter of Vikash Kumar Vs. Union Public Service Commission & ors. {(2021) 5 SCC 370} held that the RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more 'normal' or 'better' than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference. It further held that it gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 25 silenced. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity.
34. Another argument has been raised by the State that the State Medical Board Certificate since was issued after the cut off date of 28.10.2022 that certificate would be of no use. With respect to it, the original certificate which was issued to the petitioner was submitted within time which was in accordance with the Form -V. The Annexure 4 appended to the Rules, 2018 prescribed that it is to be by the State Medical Board. This argument cannot be appreciated that such document cannot be considered as disability is a factor which continues with a human being, therefore, once the certificate was produced by the Medical Board, and the said disability has further been affirmed by the State Medical Board on these technical grounds, the petitioner cannot be non suited of her right.
35. The Supreme Court in Vikash Kumar (supra) observed that as a social construct, disability encompasses features broader and more comprehensive than a medical condition. In the instant case, disability was proved by the State Medical WPC No. 4849 of 2022 Anjali Sonkar Vs. State of Chhattisgarh & Ors. 26 Board which acknowledged the disability. The principle of reasonable accommodation is required to be applied for facilitating the development of the disabled.
36. The Rules 5 (2) (b) (i) named Chhattisgarh Chikitsa, Dant Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak Pravesh Niyam, 2018 where disqualifies a person with disability on the upper arm is declared as ultra vires to the notification of the Central Government dated 13.05.2019. The petitioner having submitted the original medical certificate which is required, it cannot be stated that the certificate was produced after the prescribed date.
37. In the result, the petition is allowed. We set aside the order of the counseling committee dated 08.11.2022 (Annexure P-
1), whereby the candidature of the petitioner was cancelled and direct that the case of the petitioner for her admission to M.B.B.S. Course under the PwD Category be considered as against one seat in Unreserved category which was directed to be reserved by this Court vide order dated 15.12.2022.
38. There shall be no order as to cost (s).
Sd/- Sd/-
SD/- SD/-
(Goutam Bhaduri) (N.K.Chandravanshi)
Judge Judge
Gowri