Madhya Pradesh High Court
Soyab Khan vs Untion Of India on 20 April, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 20th OF APRIL, 2022
WRIT PETITION No. 3832 of 2022
Between:-
SOYAB KHAN S/O YUSUF KHAN, AGED ABOUT
20 YEARS, OCCUPATION: STUDENT, R/O WARD
NO. 1, RATHOD MOHALLA, THIKARI, BARWANI
(MADHYA PRADESH)
.....PETITIONER
AND
UNTION OF INDIA THROUGH SECRETARY
DEPARTMENT OF PULIC HEALTH AND FAMILY
1.
WELFARE GOVERNMENT OF INDIA, NIRMAL
BHAWAN, NEW DELHI 110011
NATIONAL TESTING AGENCY THROUGH ITS
DIRECTOR GENERAL (AN AUTONOMOUS
ORGANIZATION UNDER THE DEPARTMENT OF
2.
HIGHER EDUCATION, MINISTRY OF EDUCATION
GOVERNMENT OF INDIA) R.K. PURAM NEW
DELHI 110066
NATIONAL MEDICAL BOARD, THROUGH
CHAIRMAN (FORMALLY KNOWN AS MEDICAL
3.
COUNCIL OF INDIA) POCKET-14, SECTOR-8,
DWARKA PHASE-1, NEW DELHI-110077
THE STATE OF MADHYA PRADESH, THROUGH
SECRETARY DEPARTMENT OF PUBLIC HEALTH
4.
AND FAMILY WELFARE VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
CONVENER NEET, CENTRAL BOARD OF
SECONDARY EXAMINATION SHIKSHA KENDRA,
5.
2- COMMUNITY CENTRE, PREET VIHAR, NEW
DELHI 110092
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PRINCIPAL NETHAJI SUBHASHCHANDRA BOSE
MEDICAL COLLEGE, TILWARA ROAD, DOCTORS
6.
COLONY, MEDICAL COLLEGE COLONY,
JABALPUR, (MADHYA PRADESH) 482003
.....RESPONDENTS
Shri Jitendra Verma, learned counsel for the Petitioner .
Shri Kunwar Sumersingh Chouhan, learned counsel for the
Respondent [R-3].
Shri Himanshu Joshi, learned counsel for the Respondent [R-
1].
Shri Pushyamitra Bhargava, Additional Advocate General for
the respondent/State.
****
The petitioner is aggrieved by the denial of admission in the MBBS (UG) Course by respondent No. 6 college on the ground that respondent No.3 has declared him, not fit due to suffering from the '' Cerebral Palsy'' with 50% disability.
The facts giving rise to the present petition are as under:
[2] The petitioner is a physically disabled person suffering from ''Cerebral Palsy''. He also belongs to the OBC category. The petitioner appeared in Higher Secondary Examination in the year 2019. Thereafter, he appeared in National Eligibility-cum-Entrance Test, 2021 (NEET (UG) 2021) intending to become a doctor. After securing marks 255 marks with a rank of 866 in Category-PwD, he participated in the State counselling conducted by the Director of Medical Education and he was allotted the respondent No.6/College.
[3] As per Clause 4(3) of the Medical Council of India Regulations on Graduate Medical Education, 1997 (hereinafter
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referred to as ''Regulation, 1997''), 5% seats of the annual sanctioned intake capacity in Government and Government aided Institutions are reserved to PwD candidates with benchmark disabilities in terms of the provisions of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as '' Act, 2016''). The petitioner appeared before the Medical Board of VMMC & Safdarjang Hospital, New Delhi to get a certificate of disabilities. The Medical Board has found him suffering from '' Cerebral Palsy'' with a disability of 50% and declared him 'not-eligible' for admission in Medical/ Dental Course as per MIC Gazette Notification No. MCI 18 (1)/2018-MeD/187262 dated 05.02.2019/14.05.2019. On the basis of the aforesaid certificate, respondent No.6 has denied him admission to pursue MBBS course.
Hence, the present writ petition before this Court. [4] According to the petitioner, although he is suffering from a specified disability i.e. '' Cerebral Palsy'' under Appendix H-1 and in order to get the admission against the quota earmarked for 'Person with Disability, it shall not be more than 80% as per the notification dated 13.05.2019, therefore, the petitioner has wrongly been denied for admission. Learned counsel for the petitioner submits that the petitioner is fit and performing his day to day work from both hands without any support, hence he has wrongly been declared unfit for admission.
[5] Vide order dated 17.02.2022, by way of interim relief this Court, has directed that any allotment of seat in question shall be subject to the final outcome of the present writ petition. Thereafter, vide order dated 04.04.2022 learned Additional Advocate General was directed to send information to the selected candidates about
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the pendency of this writ petition and interim order dated 17.02.2022 passed by this Court. That in order to get a second opinion, about the percentage of disability of the petitioner, this Court has directed respondents No.2 and 3 to make arrangements for the medical re-examination of the petitioner by the Medical Board of All India Institute of Medical Science, Nagpur. The petitioner appeared before the Medical Board of All India Institute of Medical Science, Nagpur and a report was sent assessing the disability of the petitioner 41% and declared him fit for admission.
The report given by All India Institute of Medical Science, Nagpur regarding the disability of the petitioner is reproduced below:-
Medical Report With reference to Court order, Hon. High Court of Madhya Pradesh at Indore- No.WP3832 of 2022 (Soyab Khan Vs.Union of India and Others) dated 04.04.2022, regarding opinion of medical board of AIIMS Nagpur, a three-member medical board has been constituted for the assessment and eligibility of Mr. Soyab Khan for undergraduate medical admission.
After careful examination and detailed assessment (As per Gazette Notification DL-33004/99, Extra Ordinary-Part III Section 4 No.-51 dated 04.02.2019) of Mr. Soyab Khan, medical board is of opinion that-
1. Mr. Soyab Khan is a case of cerebral palsy- right infantile hemiparesis with mild dystonia of hand.
2. As per assessment of medical board of AIIMS Nagpur on 12.04.2022, the total permanent physical impairment is 41 percent at present and he is Eligible for NEET undergraduate admission.
3. Remark-Dystonia may aggravate in stressful situation.
Clause 4 of Appendix ''H-1'' amendment notification dated 13.05.2019 is reproduced below:-
Appendix ''H-1'' Guidelines regarding admission of students with ''Specified Disabilities'' under the Right of Persons with Disabilities Act, 2016 with respect to admission in MBBS Course.
Note: 1. The ''Certificate of Disability'' shall be issued in accordance
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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).
Disability Type
S. Type of Specified Disability Range
No. Disabilities Disability
Eligible for Medical Eligible for Medical Not
Course, Not eligible for Course, Eligible for PwD Eligible PwD quota Quota for Medical Course.
1 A. a. Leprosy Less than 40% disability 40-80% disability More
Locomotor, cured persons * Persons with more than than
Disability, 80% disability may also be 80%
including allowed on case to case
Specified basis and their functional
Disabilities (a to competency will be
f) determined with 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
b. Cerebral required to pursue and
Palsy ** complete the course
c. Dwarfism satisfactorily
d. Muscular
Dystrophy
e. Acid attack
victims
f. Others ***
Disability Type
such as
Amputation,
Poliomyelitis,
etc.
* 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 Equal to
Impairment(*) Less than 40% disability or More
than
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40%
Disabilit
y
C. Hearing b. Low vision
impairment @
a. Deaf Less than 40% disability Equal to
or more
than
40%
Disabilit
y
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.
[6] It is clear from the aforesaid Appendix the person with a specified disability '' Cerebral Palsy'' with 40-80% disability is eligible for the medical course under PwD Quota, hence Medical Board of VMMC & Safdarjang Hospital, New Delhi has wrongly declared the petitioner unfit despite disability less than 80%. [7] Respondent No.6 has filed a reply stating that VMMC & Safdarjang Hospital, New Delhi has specifically mentioned the nature of disability of the petitioner and found him not eligible for admission in Medical/Dental Course due to Right Upper Limb (Hand) Involvement, hence, petitioner has rightly been denied the admission. It is further submitted that the seat that fell vacant due to non-admission of the petitioner, has been filled by given to Ranjeet Singh. Vide letter dated 08.04.2022, the Director of Medical Education has informed him that his admission shall be subject to the final outcome of the present writ petition in view of the interim order passed on 04.04.2022.
[8] At this stage, Shri Bhargav, learned Additional Advocate General for the respondent No.6 submits that in place of the petitioner, one Dr Ranjeet Singh has been given admission and if the petitioner is directed to be admitted in the college of respondent
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No. 6 then admission of Dr Ranjeet Singh is liable to be cancelled. This Court vide interim order dated 17.02.2022, has already protected the interest of the petitioner during the pendency of this petition by directing that any allotment of the seat in question shall be subject to the final outcome of the petition, therefore, admission of Rajneet Singh is liable to be cancelled.
[8] Shri Joshi, learned ASJ submits that the Government of India DGHS has issued notice dated 18.04.2022 for conducting a special straw vacancy round to fill 325 MBBS seats of All India Quota in which the candidates who have registered with MCC for All India Quota seats can participate. Since the petitioner has not registered 15% All India Quota seats, therefore, he cannot be permitted to participate in this round. If Ranjeet Singh has got himself registered for All India Quota, he can be permitted to participate in the Online Stray vacancy Round to get in admission in UG Course. In the said notice, the eligibility and ineligibility of the candidates have been prescribed to participate in Special Straw Vacancy Round, which are as under:
The eligibility of candidates to participate in Special Stray Vacancy Round is reiterated as under:-
ELIGIBLE CANDIDATE:
Candidates previously registered on MCC portal but not holding any seat in the previous rounds of NEET-UG Counselling, 2021 of All India Quota/State Quota.
• INELIGIBLE CANDIDATE:
a. A candidate already allotted & joined a seat in AIQ/State Counselling.
b. A candidate who has been allotted a seat in AIQ Mop-Up Round & Stray Vacancy Round (For MBBS Seats conducted from 1st April to 11th April, 2022) by MCC earlier but did not join the allotted seat.
[9] As per aforesaid conditions, the candidates previously
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registered on MCC portal but not holding any seat in the previous round of NEET-UG Counselling, 2021 of All India Quota/State Quota are eligible to participate but a candidate already allotted & joined a seat in All India Quota/ State Counselling and candidate who has been allotted a seat in All India Quota Mop-Up round but did not join the allotted seat are ineligible to participate in the Straw round. After the cancellation of the admission, Ranjeet Singh, if he so wishes can participate in this round. In case respondents get any seat vacant from AIQ.
In view of the above, petition is allowed, the respondent No.6 is directed to give admission to the petitioner.
No order as to cost.
( VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2022.04.22 17:33:16 +05'30'