Kerala High Court
Aswathy.P vs Union Of India on 25 January, 2021
Equivalent citations: AIRONLINE 2021 KER 720
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
MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942
WP(C).No.27225 OF 2020(C)
PETITIONER:
ASWATHY.P,
AGED 20 YEARS, D/O.MURALIDHARAN P.K.,
PALLIKATTU HOUSE, PULVETTA P.O.,
KARUVARAKUNDU, KAKKARA, MALAPPURAM-676523.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF
EVACUATION, SHASTRI BHAVAN, NEW DELHI-110001.
2 SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, NIRMAN BHAWAN,
NEW DELHI-110011.
3 NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS CHAIRMAN (FORMERLY MEDICAL
COUNCIL OF INDIA), POCKET-14, SECTOR-8,
DWARKA PHASE-1, NEW DELHI-110077.
4 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM-695001, KERALA.
5 THE CONVENOR,
NEET, CENTRAL BOARD OF SECONDARY EDUCATION,
SIKSHA KENDRA, 2-COMMUNITY CENTRE,
PREET VIHAR, NEW DELHI-110092.
W.P.(C) No.27225 of 2020
..2..
6 NATIONAL TESTING AGENCY,
REPRESENTED BY DIRECTOR GENERAL,
DEPARTMENT OF HIGHER EDUCATION, MINISTRY OF
HUMAN RESOURCE DEVELOPMENT,
R.K.PURAM, NEW DELHI-110066.
7 MEDICAL BOARD FOR DISABILITY (DESIGNATED
DISABILITY CENTRE) MEDICAL COLLEGE,
REPRESENTED BY ITS CHAIRMAN, MEDICAL COLLEGE
HOSPITAL, THIRUVANANTHAPURAM, KERALA-695011.
8 THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE, MANJERI,
MALAPPURAM DISTRICT-676121, KERALA.
R1-2 BY ADV. SRI.JAISHANKAR V.NAIR
R3 BY ADV. SRI.TITUS MANI
R6 BY ADV. SHRI.NIRMAL S, SC, NATIONAL
TESTING AGENCY
ADV.V.MANU SPL. GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-01-2021, THE COURT ON 25-01-2021 DELIVERED THE FOL-
LOWING:
W.P.(C) No.27225 of 2020
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C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.27225 of 2020
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Dated this the 25th day of January, 2021
JUDGMENT
Petitioner is a person suffering from Cerebral Palsy. The issue in this case relates to the right of the petitioner to claim admission to MBBS course against the quota earmarked for 'Persons with Disability'.
2. The petitioner appeared for the National Eligibility-cum-Entrance Test, 2020 (the Test) to secure admission to MBBS Course. She secured rank No.344859 in the Test. As per Clause 4(3) of the Medical Council of India Regulations on Graduate Medical Education, 1997 (the Regulations), 5% seats of the annual sanctioned intake capacity in Government and Government aided Institutions shall be filled up by candidates with benchmark disabilities in terms of the provisions of the Rights of Persons with Disabilities Act, 2016 (the Act) based on their rank in the Test, subject to the eligibility in terms of Appendix H-1 to the Regulations. In terms of the Act, a candidate with benchmark W.P.(C) No.27225 of 2020 ..4..
disability is a candidate with not less than forty per cent of a specified disability and the specified disability is any one of the disabilities specified in the Schedule to the Act. Cerebral Palsy is a specified disability. Appendix H-1, however, provides that in order to claim admission against the quota earmarked for `Persons with Disability', the disability of candidates suffering from Cerebral Palsy shall not be more than 80%. In the second round of allotment against all India quota, the petitioner was provisionally allotted a seat at the Government Medical College, Manjeri. Ext.P5 is the provisional allotment letter issued to the petitioner. As per the prospectus, a candidate seeking admission under the quota earmarked for 'Persons with Disability' has to produce a Certificate of Disability from the Designated Centre. Ext.P6 is the Certificate of Disability secured by the petitioner from the Designated Centre. In Ext.P6, it is certified that the petitioner is suffering from Spastic Cerebral Palsy Triplegia and her disability is 63.3%. It was, however, endorsed in Ext.P6 that since the right upper limb of the petitioner is involved in her disability, she is not suitable for admission to Medical Courses. In the light of the said endorsement in Ext.P6 Certificate of Disability, the petitioner was denied admission to the course. The case set out by the petitioner in the writ petition is that since she is eligible for admission to MBBS Course in the quota earmarked for 'Persons with Disability' as per W.P.(C) No.27225 of 2020 ..5..
the Regulations, she cannot be denied admission to the course based on the endorsement of suitability made by the authority designated for issuing the Certificate of Disability. The petitioner, therefore, seeks orders quashing Ext.P6 Certificate of Disability, to the extent it provides that the petitioner is not suitable for Medical Courses. The petitioner also seeks a declaration that she is eligible for admission to MBBS Course under the quota earmarked for 'Persons with Disability', as per the Regulations. She further seeks directions to the respondents concerned to admit her to the MBBS Course in the institution referred to in Ext.P5 allotment.
3. On 07.12.2020, this Court admitted the writ petition and passed an interim order directing the concerned respondent to admit the petitioner provisionally to the MBBS Course, subject to further orders. The said interim order reads thus:
"Admit.
2. Learned CGC, Sri.Jayasankar V Nair takes notice for respondents 1 and 2. Learned Standing Counsel, Sri.Titus Mani Vettom, takes notice for the 3 rd respondent. Learned Government Pleader takes notice for respondents 4, 7 and 8. Learned Standing Counsel, Sri.Nirmal.S, takes notice for respondents 5 and 6.
3. By Ext.P6 certificate, the special medical board while assessing the disability of the petitioner at 63.3%, opined that though the petitioner is eligible for PwD quota, she is not suitable for medical and dental W.P.(C) No.27225 of 2020 ..6..
courses. Therefore, she is unable to join the 7 th respondent College based on Ext.P5 allotment.
4. The learned counsel for the petitioner points out that the specified disability of the petitioner is Cerebral Palsy (Triplegia). Under Appendix H-1 (Ext.P4) of the Graduate Medical Education Amendment Regulation 2019, as against specified disability of Cerebral Palsy, which comes under locomotor disability, persons with disability upto 80% are eligible. Further requirement for cerebral palsy is given against the 2 asterisks as "** Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations be looked at". According to Ms. Aruna, the learned counsel for the petitioner, the Medical Board has assessed her disability under GMFCS-II at 50%, MACS-II at 30% and total disability is found as 63.3%. However, the further opinion given by the Medical Board that she is not suitable for medical and dental courses as upper limb (right) is also involved, was unwarranted. According to the learned counsel, when the Medical Board has found that she is having only 63.3% i.e., below 80% disability, further assessment should have been confined to the impairment of vision, hearing, cognitive function, etc. Further assessment as to her suitability with respect to upper limb is not liable to be considered in tune with Appendix H-1 read with provisions contained in Right of Persons With Disabilities Act, 2016, or under Ext P8 notification issued by the Government of India.
5. Heard both sides.
Though the learned counsel for all the respondents vehemently opposed, the contention of the petitioner pointing out that the assessment made by an expert body W.P.(C) No.27225 of 2020 ..7..
is not liable to be interfered with, I find force in the contention of Ms. Aruna. The last date for admission on the basis of Ext.P5 allotment is 08.12.2020. Therefore, there is no time left for getting the opinion of another medical board.
Therefore, there shall be a direction to the 8 th respondent to admit the petitioner provisionally and subject to further orders.
Hand over to both sides."
It is seen that later on 22.12.2020, the matter was brought up by the respondents pointing out that the admissions are to be closed on 31.12.2020 and if it is found ultimately in the writ petition that the petitioner is not eligible for admission against the quota earmarked for 'Persons with Disability', one seat will remain vacant. It appears that it was also pointed out by the respondents on 22.12.2020 that Triplegia which the petitioner is suffering from is independent of Cerebral Palsy, and persons suffering from Triplegia are eligible for admission in terms of Appendix H-1 only if both their hands are intact with intact sensation, sufficient strength and range of motion. This Court then passed the following interim order on 22.12.2020 :
"Read order dated 07/12/2020.
On 07/12/2020, this Court had passed an interim order directing grant of provisional admission to the petitioner. In the said interim order, this Court had taken note of the fact that the last date for admission, on the basis of Ext.P5 W.P.(C) No.27225 of 2020 ..8..
allotment in favour of the petitioner, was on 08/12/2020. The interim order was passed on 07/12/2020. The writ petition has now been brought up by the respondents pointing out that, the admissions are to close on 31/12/2020 and that if ultimately the petitioner is found to be ineligible, then one seat will fall vacant which cannot be allotted to any other candidate.
2. The question posed is whether the disability of the petitioner, as mentioned in Ext.P6 certificate of disability, namely "Spastic Cerebral Palsy Triplegia" (Both Lower limbs and Right Upper limbs), is one and the same disability or whether, in the case of the petitioner, Triplegia is independent of Cerebral Palsy. If it is found that the petitioner has disability of Triplegia, independent of Cerebral Palsy, she may not be eligible for admission. From Ext.P4 regulation, it appears that Triplegia, if independent of Cerebral Palsy, would fall within clause (f) in the column specified 'disability' and she may not be eligible for admission.
3. Be that as it may, I do not propose to go into the said question at this stage. The learned Single Judge, in the interim order dated 07/12/2020, has taken note of the fact that, since the last date for admission on the basis of Ext.P5 allotment was 08/12/2020, and that the writ petition had come up on 07/12/2020, there was no time left for getting another opinion of the Medical Board. The Medical Board at Thiruvananthapuram being the designated Medical Board and Ext.P6 certificate of disability having been issued by that Board, I consider it proper that the petitioner appears before the same Board for a certification as to whether, in the case of the petitioner, the disability of Triplegia is independent of cerebral palsy noted therein or is it one that has occurred as a consequence of cerebral palsy. The petitioner shall appear before the Medical Board either on 28/12/2020 or 29/12/2020 between 11:00 am and 3:00 W.P.(C) No.27225 of 2020 ..9..
pm, at her convenience.
The Special Government Pleader shall give necessary instructions to the Board to make themselves available on those days, at the time as mentioned, for examination. The Medical Board shall issue a certificate in the form as prescribed. The Certificate shall be issued on the very same day of assessment."
Pursuant to the said interim order, the petitioner was subjected to medical examination again by the Designated Centre.
4. When the matter was taken up for final hearing on 13.1.2021, the learned Government Pleader has made available to the Court the Certificate of Disability issued by the Designated Centre pursuant to the interim order dated 22.12.2020. The said Certificate of Disability shall form part of the records in this case as Ext.R7(a). It is certified by the Designated Centre in the certificate that Triplegia is most likely attributable to Spastic Cerebral Palsy which the petitioner is suffering from.
5. Heard the learned counsel for the petitioner, the learned Government Pleader, the learned Central Government Counsel as also the learned Standing Counsel for the National Medical Commission.
6. The learned counsel for the petitioner submitted that the petitioner being a person suffering from benchmark disability and not disqualified in terms of Appendix H-1 to the Regulations, she is eligible for admission to the course. It was also W.P.(C) No.27225 of 2020 ..10..
the submission of the learned counsel that the Centre designated to issue Certificate of Disability cannot decide the eligibility of a candidate, and the decision taken by the competent authority to deny admission to the petitioner to the course solely based on the opinion of the Designated Centre is illegal and arbitrary.
7. Per contra, the learned Standing Counsel for the third respondent pointed out that the petitioner is not only suffering from Spastic Cerebral Palsy, but also from Triplegia, and Triplegia falls under residuary category 'others' made mention of under the general category 'Locomotor Disability' in Appendix H-1; that in terms of Appendix H-1, candidates suffering from disabilities on account of the causes and ailments mentioned in residuary category 'others' are eligible to claim admission to medical course only if both their hands are intact, with intact sensations, sufficient strength and range of motion. According to the learned Standing Counsel, insofar as it is specifically mentioned in Ext.P6 Certificate of Disability that the right upper limb of the petitioner is involved in her disability, she does not satisfy the requirements of Appendix H-1. The fact that the petitioner is suffering from Triplegia has been specifically added in Ext.P6 Certificate of Disability along with the specified disability 'Cerebral Palsy', submits the learned Standing Counsel. It was also contended by the learned Standing Counsel that the scheme of Appendix H-1 is that candidates whose hands W.P.(C) No.27225 of 2020 ..11..
are intact, with intact sensations, sufficient strength and range of motion alone shall be admitted to the course. The learned Standing Counsel has also relied on the decision of the Apex Court in Vidhi Himmat Katariya and Others v. State of Gujarat ad Others, (2019) 10 SCC 20, in support of his contentions.
8. The learned Government Pleader as also the learned Central Government Counsel supported the arguments raised by the learned Standing Counsel for the third respondent.
9. As noted, as per Clause 4(3) of the Regulations, the seats earmarked for 'Persons with Disability' are to be filled up by candidates with benchmark disabilities in terms of the Act based on their rank in the Test, subject to the eligibility in terms of Appendix H-1 to the Regulations. Again, as noted, in terms of the Act, a candidate with benchmark disability is a candidate with not less than forty per cent of a specified disability and the specified disability is any one of the disabilities specified in the Schedule to the Act. Cerebral Palsy is a specified disability. In terms of Appendix H-1, candidates suffering from Cerebral Palsy with not more than 80% disability are eligible for admission to MBBS Course. Petitioner who is suffering from Cerebral Palsy is disabled only to the extent of 63.3% in terms of the Certificate of Disability issued by the Designated Centre. In other words, the petitioner is eligible in terms of the Regulations to claim admission to the MBBS Course. W.P.(C) No.27225 of 2020
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10. I shall now examine the contentions put forward by the third respondent. Before dealing with the contentions, it is necessary to mention that the third respondent has not filed a counter affidavit in this matter. Since the matter was brought up at the instance of the third respondent, this Court specifically asked the learned Standing Counsel as to whether the third respondent intends to file any counter affidavit in the matter, and the stand adopted by the Standing Counsel in this context is that the materials on record are sufficient to decide the eligibility of the petitioner. The matter was accordingly taken up for hearing.
11. As noted, the contention of the third respondent is that the petitioner is not only suffering from Spastic Cerebral Palsy, but also from Triplegia, and Triplegia falls under residuary category 'others' made mention of under the general category 'Locomotor Disability' in Appendix H-1; that in terms of Appendix H-1, candidates suffering from disabilities on account of causes mentioned in the residuary category 'others' are eligible to claim admission to medical courses only if both their hands are intact, with intact sensations, sufficient strength and range of motion and that insofar as it is mentioned in Ext.P6 that the right upper limb of the petitioner is involved in her disability, she does not satisfy W.P.(C) No.27225 of 2020 ..13..
the requirements in Appendix H-1. In order to consider the said contention of the third respondent, it is necessary to refer to the relevant portion of Appendix H-1 of the Regulations which is reproduced hereunder:
Disability Range Disability Type S. Type of Specified Disability Eligible Eligible for Medical Not Eligible No. Disabilities for Course, Eligible for for Medical Medical PwD Quota Course Course, Not Eligible for PwD Quota
1. A. a. Leprosy cured Less than 40-80% disability More than Locomotor person* 40% Persons with more 80% Disability, b. Cerebral Palsy** disability than 80% disability including may also be allowed Specified c. Dwarfism on case to case Disabilities basis and their (a to f). d. Muscular functional Dystrophy competency will be e. Acid attack determined with the victims aid of assistive f. Others*** such devices, if it is being Physical Disability as Amputation, used, to see if it is Poliomyelitis etc. brought below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily.
* 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 recommendations be looked at. *** Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered eligible for medical course.
It is evident from the Certificate of Disability furnished by the Designated Centre pursuant to the interim order passed by this W.P.(C) No.27225 of 2020 ..14..
Court on 22.12.2020 that Triplegia referred to in Ext.P6 Certificate of Disability is only the medical condition associated with the disability of the petitioner, viz, Spastic Cerebral Palsy. In other words, the said medical condition of the petitioner cannot be regarded as an independent disability. True, in the column intended for specifying the disability in Ext.P6 Certificate of Disability, the Designated Centre has added Triplegia also. But, merely for the reason that the Designated Centre has mentioned in the Certificate of Disability the medical condition of the petitioner also, it cannot be construed as an independent disability, when the materials on record establish that it is not an independent disability, but only the medical condition of the petitioner.
12. True, in the context of locomotor disabilities like amputation, poliomyelitis etc., Appendix H-1 provides that both hands of the candidate shall be intact with intact sensation, sufficient strength and range of motion. But, as far as Cerebral Palsy is concerned, the requirement is only that the disability of the candidate shall not be more than 80% and that the candidate shall not be suffering from impairment of vision, hearing, cognitive function etc. The aforesaid prescriptions cannot be presumed to be mutually destructive. If one makes an attempt to reconcile the prescriptions, it can be seen that a candidate who does not suffer from the disqualifications in Appendix H-1 is presumed to be W.P.(C) No.27225 of 2020 ..15..
suitable for medical education. I take this view having regard to Guidelines issued by the Central Government, in exercise of the power conferred under Section 56 of the Act for the purpose of assessing the extent of specified disability in a person included in the Act, in terms of which Ext.P6 Certificate of Disability has been issued to the petitioner. The relevant portion in the said Guidelines is part of the records as Ext.P8. The said Guidelines provided for a system called Gross Motor Function Classification System (GMFCS) for evaluating the general disability and a system called Manual Ability Classification System (MACS) to assess the disability of the persons affected by Cerebral Palsy. Ext.P6 Certificate indicates that the disability of the petitioner applying the GMFCS was found to be 50%. In other words, in terms of the Guidelines referred to above, the petitioner is a person who can climb stairs with railing, though she has only minimum ability to run or jump and difficulty with uneven surfaces or inclines. Similarly, Ext.P6 Certificate indicates that the disability of the petitioner applying MACS was found to be 30%. In other words, in terms of the Guidelines, the petitioner is a person who is able to handle most objects with somewhat reduced quality and/or speed of achievement. In other words, according to me, it cannot be said that the petitioner suffers from any of the disqualifications mentioned in Appendix H-1 for persons suffering from Locomotor Disability like Amputation, Poliomyelitis etc. The W.P.(C) No.27225 of 2020 ..16..
decision of the Apex Court in Vidhi has no application to the facts of the present case, for the same relates to persons admittedly suffering from the disability falling under the residuary clause "others" under the general Locomotor Disability Category in Appendix H-1 and not persons suffering from Cerebral Palsy as in the case on hand for which a different criteria for assessment of the disability and suitability has been provided for. Needless to say, there is absolutely no merit in the contentions advanced by the learned counsel for the third respondent.
13. Be that as it may, it is necessary to mention in the context of this case 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. It is with the aforesaid objective that the Act was brought into force, and having regard to the provisions of the Act, it is the obligation of the State to do all that is necessary to empower persons with disability to foster their participation in all aspects of W.P.(C) No.27225 of 2020 ..17..
life. In the light of the aforesaid objective, in matters relating to admission to educational institutions, especially against the quota earmarked for persons with disability, what is to be considered is as to whether the candidates are in a position to perform the essential functions of the course and if they are able to perform the essential functions of the course, admission shall not be denied to them on the ground of their disability. I may add in this context that if the curriculum of a particular course is not disabled friendly, it is the obligation of the authorities concerned to make the curriculum disabled friendly to the extent possible and to provide to the persons with disability necessary assistance having regard to the technological advancements in the field. In other words, the ultimate objective shall be that if a disabled person desires to pursue his studies in a particular field, and if he is capable and competent to do so, his disability shall not stand in the way of the said learning process.
14. Reverting to the facts again, the petitioner is a person who can climb stairs with railing, though she has only minimum ability to run or jump and she has difficulty in moving with uneven surfaces. She is also a person who is able to handle most objects with somewhat reduced quality and/or speed of achievement. Denying admission to such a person in medical courses would be per se arbitrary. On a specific query from the W.P.(C) No.27225 of 2020 ..18..
court as to the basis for insisting that the hands of the candidates shall be intact with intact sensations, sufficient strength and range of motion, the answer given by the Standing Counsel for the third respondent was that the same is necessary for a person to perform the duties of a doctor. True, the doctors need to physically examine the patients, but all candidates pursuing medical courses are not becoming practising doctors. There are several other avenues also for candidates who are pursuing medical courses such as teaching, research etc. other than practising in surgical and clinical faculties which persons who do not have even the upper limbs are successfully doing. That apart, it cannot be said that a person who is not able to physically examine a patient cannot be a doctor, for having regard to the technological advancements achieved in the field of medicine especially during the last couple of decades, there would be umpteen replacements for physical examination in the years to come.
In the result, the writ petition is allowed and the interim order passed by this Court dated 07.12.2020 directing the eighth respondent to admit the petitioner to the MBBS Course is made absolute.
Sd/-
P.B.SURESH KUMAR JUDGE ds 16.01.2021 W.P.(C) No.27225 of 2020 ..19..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ADMISSION CARD ISSUED TO THE PETITIONER BY THE NATIONAL ELIGIBILITY TEST (UG) BY THE MINISTRY OF EDUCATION, GOVERNMENT OF INDIA.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF
DISABILITY ISSUED TO THE PETITIONER BY
THE STANDING DISABILITY ASSESSMENT
BOARD ON 10.11.2009.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE
NEET PROSPECTUS FOR THE YEAR 2020.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE
GRADUATE MEDICAL EDUCATION REGULATIONS
(AMENDMENT) 2019.
EXHIBIT P5 TRUE COPY OF THE PROVISIONAL ALLOTMENT
LETTER NO.2 WITH RESPECT TO ALLOTMENT
DATED 26.11.2020 ISSUED BY THE
DIRECTOR OF GENERAL OF HEALTH
SERVICES, MINISTRY OF HEALTH AND
FAMILY WELFARE, GOVERNMENT OF INDIA.
EXHIBIT P6 TRUE COPY OF THE DISABILITY
CERTIFICATE NO.G23097/19/GMCH DATED
04.12.2020.
EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE
REGULATION OF GRADUATE MEDICAL
EDUCATION (AMENDMENT) RULE 2019 DATED
04.02.2019 PUBLISHED IN THE GAZETTE OF
INDIA ON 5.2.2019.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGED OF THE
GAZETTE NOTIFICATION DATED 05.01.2018
PUBLISHING THE GUIDELINES FOR
ASSESSING SPECIFIED DISABILITY.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R7A TRUE COPY OF THE DISABILITY CERTIFICATE
ISSUED BY THE DESIGNATED CENTRE