Kerala High Court
Muhammed Aslam O.K vs The Director on 7 February, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
WP(C).No. 23657 of 2017 (F)
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PETITIONER :
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MUHAMMED ASLAM O.K.
S/O. KAREEM O.M, AGED 19 YEARS,
OLAPPILAN HOUSE, SREEMOOLANAGARAM,
ALUVA, ERNAKULAM-683580.
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
SRI.T.T.RAKESH
RESPONDENTS :
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1. THE DIRECTOR, NATIONAL ELIGIBILITY CUM
ENTRANCE TEST UNIT,
CENTRAL BOARD OF SECONDARY EDUCATION,
SHKSHA KENDRA, PREET VIHAR, DELHI-110092.
2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM-695001.
3. SECRETARY TO GOVERNMENT
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN:695001.
*ADDL.R4 IMPLEADED :
4. THE DIRECTOR OF MEDICAL EDUCATION
*ADDL. R4 IS SUO MOTU IMPLEADED AS PER ORDER
DT 26/7/2017 IN WPC 23657/2017.
R1 BY SRI.K.M.ANEESH, SC, C.B.S.E.
R2 TO R4 BY GOVERNMENT PLEADER SRI. V. MANU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31-08-2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
bp
WP(C).No. 23657 of 2017 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE PRINT OUT OF THE ONLINE
APPLICATION OF THE PETITIONER FOR
ADMISSION TO PROFESSIONAL DEGREE
COURSE 2017.
EXHIBIT P2: TRUE COPY OF THE CERTIFICATE OF DISABILITY
ISSUED BY THE MEDICAL BOARD, CONSTITUTED
BY DISTRICT HOSPITAL, ALUVA DATED
7.2.2017.
EXHIBIT P3: TRUE COPY OF THE MEMO ISSUED TO THE
PETITIONER DATED 16.6.2017.
EXHIBIT P4: TRUE COPY OF THE ADMIT CARD WITH
APPLICATION NO.80140949 ISSUED TO THE
PETITIONER.
EXHIBIT P5: TRUE COPY OF THE NEET 2017 RESULT OF THE
PETITIONER.
EXHIBIT P6: TRUE COPY OF THE RELEVANT PAGES OF THE
KERALA STATE PROVISIONAL MERIT LIST FOR
MBBS/BDS ADMISSION.
EXHIBIT P7: TRUE COPY OF THE REPRESENTATION OF THE
PETITIONER SUBMITTED BEFORE THE
COMMISSIONER FOR ENTRANCE EXAMINATION
DATED 14.7.2017.
EXHIBIT P8: TRUE COPY OF THE RELEVANT CLAUSES
CONTAINED IN PROSPECTUS 2017.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDE
bp
P.B.SURESH KUMAR, J.
==================
W.P.(C.) No.23657 of 2017
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Dated this the 31st day of August, 2017
JUDGMENT
The petitioner has applied for allotment of seat for admission to MBBS course in response to the invitation made by the second respondent against the 3% quota earmarked for persons with disabilities. The said quota was introduced for admission to various professional courses in the light of the provision contained in Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the old Disability Act). In terms of the Regulations on Graduate Medical Education issued by the Medical Council of India, the said 3% quota earmarked for persons with disabilities can be filled up only by candidates with locomotory disability of WP.(C).No.23657/2017 -2- lower limbs. It is provided in the prospectus published by the second respondent in this connection that only candidates possessing the eligibility criteria prescribed by the Medical Council of India will be considered for allotment against the said quota and that candidates possessing locomotory disabilities as regards their upper limbs will not be considered. A State Level Committee of Medical Experts has been constituted to ascertain the suitability of the candidates claiming admission against the said 3% quota. Though the petitioner was requested in terms of the provisions contained in the prospectus to appear before the said Committee for determining the suitability for admission, the petitioner did not turn up for the suitability test. He was, therefore, not included in the ranked list of candidates prepared for admission against the said 3% quota. The writ petition was filed at that point of time, seeking among others, a declaration that the petitioner is entitled to be considered for admission against the quota earmarked for persons with disability, and directions to the second WP.(C).No.23657/2017 -3- respondent to consider afresh the said claim of the petitioner, if necessary, after assessing the disability of the petitioner by the State Level Committee of Medical Experts.
2. Since the petitioner did not appear before the State Level Committee of Medical Experts on 26/07/2017, this Court passed an interim order directing respondents 2 and 4 to constitute the State Level Committee of Medical Experts afresh and ascertain the suitability of the petitioner for admission to MBBS Course.
3. On 14.08.2017, when the writ petition came up for hearing, the learned Government Pleader brought to the notice of this Court that the State Level Committee of Medical Experts found the petitioner unfit for admission to MBBS course as he is suffering from muscular dystrophy involving all four limbs. This Court took the view that the eligibility of the petitioner is to be decided by the Medical Council of India and consequently, passed an interim order directing the third respondent to allot a MBBS seat to the petitioner provisionally. It is stated that on the basis of the WP.(C).No.23657/2017 -4- interim order dated 14.08.2017, a seat was allotted to the petitioner provisionally.
4. Yesterday, in the morning session, the learned Government Pleader prayed for a posting of this matter in the afternoon session pointing out that the eligibility of the petitioner to claim admission for MBBS Course has to be decided at least today or else one student will lose the opportunity to study MBBS Course, if ultimately the writ petition is dismissed. In the light of the said submission made by the learned Government Pleader, the matter was directed to be listed in the afternoon session with notice to the learned counsel for the petitioner.
5. When the matter was taken up in the afternoon session, the learned Government Pleader pointed out that the State Level committee of Medical Experts found that the petitioner is suffering from locomotory disability as regards his upper limbs and that he is, therefore, not eligible for admission to MBBS course in terms of the Regulations issued by the Medical Council of India as also WP.(C).No.23657/2017 -5- the prospectus. A letter addressed by the second respondent to the Advocate General enclosing a copy of the medical inspection report was also made available.
6. The learned Senior Counsel for the petitioner opposed the prayer for vacating the interim order on the ground that the petitioner has absolutely no idea about the medical inspection report and that the respondents should have filed a counter affidavit producing the same before they moved for vacating the interim order. It was also pointed out that the petitioner is not suffering from any disability as regards his upper limbs and the medical experts might have opined that he is suffering from disabilities as regards his upper limbs since he is suffering from muscular dystrophy which is a progressive disease. According to the learned Senior Counsel, in so far as the petitioner is not suffering from any disability whatsoever as regards his upper limbs, he should not be denied a seat on that basis. A video of the petitioner was also shown by the learned Senior Counsel in support of his contention that the WP.(C).No.23657/2017 -6- petitioner is not suffering from any disability as regards his upper limbs at present.
7. In so far as it was found that a copy of the medical inspection report was not served on the learned counsel for the petitioner, the matter was adjourned to this date with a direction to the learned Government pleader to provide a copy of the report of the medical experts to the learned counsel for the petitioner on an understanding that the writ petition itself can be heard. Since it was noticed that the assistance of the Medical Council of India is also required for deciding the issue raised, especially in the light of the interim order passed by this Court on 14/8/2017, the Standing Counsel for the Medical Council of India was also directed to make submission as regards the eligibility of the petitioner, even though the Medical Council of India is not a party to the writ petition. Since it was asserted by the learned Senior Counsel for the petitioner that the petitioner was not suffering from any locomotory disability as regards his upper limbs at the time when he was examined by the WP.(C).No.23657/2017 -7- medical experts, the members of the State Level Committee of Medical Experts who have examined the petitioner were also directed to be present in court.
8. Today, when this matter was taken up for consideration, the learned Senior Counsel for the petitioner reiterated that the finding arrived at by the State Level Committee of Medical Experts that the petitioner is suffering from locomotory disability as regards his upper limbs shall not be acted upon. Alternatively, the learned Senior Counsel for the petitioner has contended, relying on Section 16 of the Rights of Persons with Disabilities Act, 2016 (the new Disability Act), that the new Disability Act which replaced the old Disability Act prohibits discrimination of all kinds in the matter of extending education benefits to the children with disabilities. According to the learned Senior Counsel, the Regulations issued by the Medical Council of India may not have the force of law after the new Disability Act. It was also contended by the learned Senior Counsel that even if it is found that the Regulations issued by the Medical Council WP.(C).No.23657/2017 -8- of India governs the field, the disability, if any, of the petitioner as regards his upper limbs cannot be an impediment at all in claiming admission to MBBS course. The learned Senior Counsel has relied on an interim order passed by the Division Bench of the Bombay High Court on 06.09.2013 in W.P.(C) No.7617 of 2013, in support of the said contention.
9. The learned Standing Counsel for the Medical Council of India pointed out that candidates suffering from locomotory disability of their upper limbs are not eligible to be considered for admission to MBBS course in terms of the Regulations issued by the Medical Council of India. It was also pointed out by the learned Standing Counsel that on an elaborate consideration of the issue, the Division Bench of the Madras High Court in Medical Council Of India v P.Divya and the Division Bench of the Delhi High Court in Deepshikha v Medical Council Of India & Ors have consistently held that the candidates suffering from locomotory disabilities as regards their upper limbs are not WP.(C).No.23657/2017 -9- eligible for admission to MBBS course. The learned Standing Counsel has also pointed out that a view similar to the view taken by the Bombay High Court relied on by the learned Senior Counsel for the petitioner has been taken by the Gujarat High Court in Dr. Deval R.Mehta v. Union of India and Others (AIR 2011 Gujarat 33) and the said judgment has been stayed by the Supreme Court and is pending before the Supreme Court.
10. Since it was asserted by the learned Senior Counsel for the petitioner that the petitioner is not suffering from any locomotory disability as regards his upper limbs, I have interacted with the three members of the Committee of Medical Experts who were present in court. The Neurologist in the Committee, Dr.Sreekumar emphatically clarified that the the petitioner was found to be having locomotory disability as regards his upper limbs at the time of examination. It was pointed out by the said Doctor that the petitioner was able to move his upper limb only upto his shoulder and that he could not move the upper limbs WP.(C).No.23657/2017 -10- beyond shoulder. The Doctor has also informed that the neck muscles of the petitioner were found to be weak. The conclusive opinion of the said Doctor was that the case of the petitioner is one of locomotory disability of the upper limbs. Dr.Sabarinath, the expert member of the Committee in the field of Orthopaedics and Dr.George Sakaria, the expert member the Committee in the field of Physical Medicine, have endorsed the stand of Dr.Sreekumar and informed the court that the petitioner was found to be having locomotory disability as regards his upper limbs at the time of examination. I do not find any reason at all to doubt the integrity of these doctors in giving the aforesaid opinion. The contention raised by the learned Senior Counsel for the petitioner that the petitioner is not suffering from locomotory disability as regards his upper limbs is, therefore, without substance.
11. Before dealing with the remaining contentions raised by the learned Senior Counsel for the petitioner, it is necessary to refer to certain facts which are WP.(C).No.23657/2017 -11- relevant in the context. Regulations on Graduate Medical Education have been made by the Medical Council of India during 1997 itself, in exercise of its powers under Section 33 of the Indian Medical Council Act. The said Regulations initially did not provide for any reservation for persons with disability. However, in terms of the directions issued by the Apex Court in All Kerala Parents Association of Hearing Impaired and another v State of Kerala (Civil Appeal No.6120 of 2001), the Medical Council of India issued a notification on 25.03.2009 and thereby added sub-clause (3) of Clause 4 of the Regulations providing 3% reservation for admission to MBBS course in terms of Section 39 of the Old Disability Act. Sub-clause (3) of Clause 4 of the Regulations reads thus:
"(3) 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with the Locomotor disability of lower limbs between 50% to 70%.
Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50%- before they are included in the annual sanctioned seats for General WP.(C).No.23657/2017 -12- Category candidates."
In so far as the aforesaid Regulation was made in the light of Section 39 of the old Disability Act for the purpose of giving reservation to candidates with disability for securing admission to MBBS course, there cannot be any doubt that exclusion of candidates having locomotory disabilities as regards their upper limbs from claiming admission is a provision consciously made having regard to the job requirements of a doctor.
12. Regulation 4(3) of the Regulations issued by the Medical Council of India was under challenge in Deepshikha (supra), mainly on the ground that the provision contained in Section 39 of the old Disability Act will override the Regulations issued by the Medical Council of India and that therefore, there cannot be any differentiation between the persons with disability of lower limbs and the persons with disability of upper limbs. It was also contended by the petitioners in the said case that Regulation 4(3) of the Regulations issued by the Medical Council of India is unconstitutional being violative of Articles 14 and 19 of the WP.(C).No.23657/2017 -13- Constitution. It was further contended by the petitioners in the said case that at any rate, Regulation 4(3) of the Regulations is hit by unreasonable classification between persons with locomotory disabilities of upper limbs and persons with locomotory disabilities of lower limbs in the context of the old Disability Act. Relying on the view taken by the Apex Court in Union of India v Devendra Kumar Pant [(2009)14 SCC 546] that the intention of the old Disability Act is not to accept reduced standards of efficiency in the performance of functions of various jobs, the Delhi High Court Deepshikha (supra), rejected all the aforesaid contentions. Paragraphs 33 to 41 of the said judgment read thus:
"33. It is no doubt true that the Disabilities Act is a welfare legislation and the definition of the word ,,disability under Section 2(i) specifically includes locomotor disability without drawing any distinction between the disability of lower limbs and disability of upper limbs. However, the MCI which is an expert body to prescribe the qualification and standards for medical education, after elaborate deliberations, thought it fit to exclude certain disabilities including locomotor disability of upper limbs from the purview of Section 39 of the Disabilities Act. The law is well settled that this Court cannot substitute its views over a decision taken by such expert body on application of mind to the controversy involved. WP.(C).No.23657/2017 -14-
34. That apart, as held in Union of India Vs Devendra Kumar Pant, (2009) 14 SCC 546, the intention of the Disabilities Act is not to accept reduced standards of efficiency in performance of functions of a particular post merely because the employee suffers from a disability.
35. In the said case the Supreme Court was dealing with the scope and purport of Section 47(2) of the Disabilities Act which provides that no promotion shall be denied to a person merely on the ground of disability. While holding that Section 47(2) of the Disabilities Act bars disability per se being made a disqualification for promotion, it was further observed -
"30. ............ To give an example, a person working as a Lower Division Clerk (LDC) suffering from the disability of low vision, cannot be denied promotion to the post of Upper Division Clerk (UDC) merely because of his disability. This is because the efficiency with which he functioned as an LDC will be the same while functioning as a UDC also and the disability as such will not affect his functioning in a higher post. But the position is different if the disability would affect the discharge of functions or performance in a higher post or if the disability would pose a threat to the safety of the co-employees, members of the public or the employee himself, or to the assets and equipments of the employer. If promotion is denied on the ground that it will affect the safety, security and performance, then it is not denial of promotion merely on the ground of his disability, but is denial of promotion by reason of the disability plus something more, that is, adverse effect of the disability upon the employees performance of the higher duties or functions attached to the promotional post.
31. It is significant that Section 47(2) does not provide that even if the disability comes in the way of performance of higher duties and functions associated with the WP.(C).No.23657/2017 -15- promotional post, promotion shall not be denied. Section 47(2) bars promotion being denied to a person on the ground of disability, only if the disability does not affect his capacity to discharge the higher functions of a promotional post.
32. Where the employer stipulates minimum standards for promotion keeping in view the safety, security and efficiency, and if the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then Section 47(2) will not be attracted, nor can it be pressed into service for seeking promotion. In other words, where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, merely on the ground of his disability."
36. Drawing the same analogy to the case on hand, we may observe that the decision of the Expert Committee of the MCI to exclude certain categories of disabilities while providing reservation in terms of Section 39 of the Disabilities Act for admission into the medical courses is apparently for the reason that the said disabilities affect the capacity to discharge the functions as a Medical Practitioner. The report of MCI dated 05.07.2001 reflects that the feeling and sensation are important factors for clinical diagnosis and treatment. It also shows that finer movements are desired for conduct of surgical procedure. Since the persons with locomotor disability of upper limbs may not be in a position to satisfy the said criteria, the MCI appears to have excluded the persons with locomotor disability of upper limbs for the purpose of reservation in terms of Section 39 of the Disabilities Act.
37. The functional capacity to discharge the functions of a given profession or post is undoubtedly a relevant factor to decide the reasonableness of the classification and therefore, we are unable WP.(C).No.23657/2017 -16- to hold that the action of MCI in distinguishing the persons with locomotor disability of upper limbs from the persons with locomotor disability of lower limbs for the purpose of admission in MBBS Course is unreasonable.
38. In Transport and Dock Workers Union and Others Vs Mumbai Port Trust and Another;(2011) 2 SCC 575, the Supreme Court held that Article 14 does not prohibit reasonable classification for the purpose of legislation or for the purpose of adoption of a policy of the legislature or the executive provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well defined class. While referring to the two conditions that are required to be fulfilled to satisfy the test of permissible classification namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that the differentia must have a reasonable relation to the object sought to be achieved by the statute in question, it was further held in the said admission:-
"20. In our opinion Article 14 of the Constitution does not take away from the State or its instrumentality the power of classification, which to some degree is bound to produce some inequality, vide State of Bombay v. F.N. Balsara (AIR 1951 SC 318). However, in our opinion, mere inequality is not enough to violate Article
14.Differential treatment, per se, does not constitute violation of Article 14. It denies equal protection only when there is no reasonable basis for differentiation, videAmeerunnissa Begum v. Mahboob Begum (AIR 1953 SC 91 - para 11), Babulal Amthalal Mehta v. Collector of Customs (AIR 1957 SC 877 - para 16), etc. If the law or the practice deals equally with members of a well- defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons."
WP.(C).No.23657/2017 -17-
39. In a recent decision in Dr. Subramanian Swamy Vs. Director, CBI (2014) 8 SCC 682, the Supreme Court has reiterated as to what should be regarded as a ,,class for the purpose of legislation as under:-
"58. The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.
70. Undoubtedly, every differentiation is not a discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound or intelligible differentia. The separation or segregation must have a systematic relation and rational basis and the object of such segregation must not be discriminatory. Every public servant against whom there is reasonable suspicion of commission of crime or there are allegations of an offence under the PC Act, 1988 has to be treated equally and similarly under the law. Any distinction made between them WP.(C).No.23657/2017 -18- on the basis of their status or position in service for the purposes of inquiry/investigation is nothing but an artificial one and offends Article 14."
40. Reiterating the principle that Article 14 is attracted only where equals are treated differently without any reasonable basis, it is further explained in S. Seshachalam & Ors. Vs. Bar Council of Tamil Nadu (2014) SCC Online SC 1011:
"21. ............ Article 14 forbids class-legislation but it does not forbid reasonable classification. The classification however must not be "arbitrary, artificial or evasive" but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. Article 14applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred whom and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege."
41. In the light of the settled legal position noticed above, we do not find any substance in the contention that Clause 4(3) of the impugned Regulations as amended by Notification dated 25.03.2009 is hit by unreasonable classification between the persons with locomotor disabilities of upper limbs and persons with locomotor disabilities of lower limbs. The said classification according to us has a rational basis and a reasonable nexus with the object sought to be achieved. Hence the same cannot be held to be violative of the equality clause enshrined in Article 14 of the Constitution of India." WP.(C).No.23657/2017 -19-
13. Earlier, Regulation 4(3) of the Regulations issued by the Medical Council of India was also under challenge before the Madras High Court in P.Divya (supra) and the challenge was repelled by the Madras High Court holding that there is no repugnancy between Section 39 of the old Disability Act and the Regulation impugned in the said case and that both the provisions have to be read together to make them workable without any possible conflict. Paragraphs 13 and 15 of the said judgment read thus:
"13. When the experts are of the view that certain categories of the persons cannot perform the role of a student or a Doctor, then it is well within the powers of the appellant to restrict them based upon the said opinion. While this Court has got every sympathy for disabled persons, the overwhelming public interest has to be seen, particularly, when such persons cannot perform the role assigned to them.
x x x x x x x x
15. CONCLUSION:
15.1. It is not as if the disability suffered by the private respondent was considered by the appellant and rejected on an extraneous consideration. On the contrary the said exercise is yet to be done. Further more, the appellant has considered the other disabilities expressly mentioned under the Act, but chose to implement Section 39 of the Act only to the lower limb of locomotor WP.(C).No.23657/2017 -20- disability alone. The learned Single Judge, in our considered view, went beyond the scope of the writ petition and issued directions to include all disabilities for the purpose of giving benefit under Section 39 of the Act. Such a direction would lead to disastrous consequences, particularly, when a prayer in that regard has not been sought for in the writ petition. It is nobody's case that the disabilities which have been excluded would not stand in the way of the persons concerned from performing their duties as students of medicine and thereafter as Doctors. The appellant is the best person to decide the said issue. Therefore, we are also of the view that the directions given by the learned Single Judge to include all disabilities under the Act 1 of 1996 cannot be sustained.
15.2. Similarly, the findings of the learned single Judge regarding the classification made between locomotor disability, upper limb or lower limb and the percentage fixed for the lower limb also deserve to be set aside, as we find that such issues are not very much necessary for the purpose of deciding this appeal. This we hold so, because of our finding based on the Medical Board's Report that the private respondent does not suffer from any locomotor disability.
Further more, we do not find any arbitrariness in the decision made by the appellant in this regard.
15.3. However, we have come to know that the private respondent is completing nearly two years of studies, therefore, by not allowing her to continue, nobody would be benefitted and the seat is also not going to be filled up. It is also not in public interest. Further, there was no bar for her to participate in the open competition. In other words, she can perform the role of a student of medicine without any difficulty. The other respondents have also not challenged the order of the learned single Judge. The order of the learned single Judge was also given effect to. Even the appellant does not have any serious objection for the continuance of the private respondent in the medical course in view of the peculiar facts of the case. Hence, we are not inclined to interfere with the order of WP.(C).No.23657/2017 -21- continuing the course in respect of the first respondent at this stage."
14. I do not find any reason to disagree with the views expressed in the aforesaid decisions rendered by the Delhi High Court and the Madras High Court. In the light of the said judgments, the contention raised by the learned Senior Counsel for the petitioner that the disability, if any, of the petitioner as regards his upper limbs cannot be an impediment at all in claiming admission to MBBS course is only to be rejected.
15. As regards the interim order of the Bombay High Court relied on by the learned Senior Counsel for the petitioner, it is seen that the same was a decision rendered mainly on the facts of that case. It was found in that case, relying on the opinion expressed by the Medical Boards that the candidate in that case is not suffering from any disability as regards his upper limbs which disentitles him from practising as a Doctor. Paragraphs 16 and 17 of the interim order dated 06.09.2013 passed by the Bombay High WP.(C).No.23657/2017 -22- Court in W.P.(C) No.7617 of 2013 read thus:
"Dr.Kamlesh Jagiasi who is Head and Chairman of Special Medical Board of grant Government Medical College, Bombay and Sir J.J.Group of Hospitals, Bombay also states that it would depend upon the nature of extent of disabilities to the upper limb and that in this case, the petitioner's disabilities of upper limb, are not such that he cannot be considered for admission to MBBS Course on the above account.
17. In the facts of the case including the certificate of the Special Medical Board and statement of Dr.Kamlesh Jagiasi, who is present before the Court, we find that the petitioner is in a position to prosecute the study of the MBBS Course."(underline supplied) The said judgment may not have any relevance at all in the present context where the Committee of Medical Experts gave a contrary opinion.
16. As regards the submission made by the learned Senior Counsel for the petitioner, relying on the provisions contained in the new Disability Act, it is seen that the said statute was brought into force only with effect from 19.04.2017, long after the commencement of the allotment process in the instant case. Further, on a comparison of the provisions contained in the old Disability Act and the new Disability Act, I do not find any difference at all in the WP.(C).No.23657/2017 -23- scheme of the statues. Of course, the State is now under obligation to provide better facilities to persons with disabilities. But, in the light of the decision of the Apex Court in Devendra Kumar Pant (supra), it cannot be contended that Regulation 4(3) of the Regulations is unenforcible after the new Disability Act.
In the circumstances, though my heart is filled with sympathy to this petitioner, the constitutional obligation compels this Court to dismiss the writ petition. The writ petition is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR,
SKS JUDGE
(true copy)