Kerala High Court
S. Amina vs State Of Kerala on 21 December, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(C).No.28457/2020-F 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942
WP(C).No.28457 OF 2020(F)
PETITIONER:
S. AMINA
AGED 18 YEARS
D/O. JASMIN I., SHOUKATH MANZIL, K. S. PURAM P. O.,
ADINADU, KARUNAGAPALLY, KOLLAM, PIN - 690 544.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH
AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE CONVENER,
NATIONAL ELIGIBILITY CUM ENTRANCE TEST (NEET),
C.B.S.E., SIKSHA KENDRA, COMMUNITY CENTER,
PREET VIHAR, NEW DELHI - 110092.
3 COMMISSIONER OF ENTRANCE EXAMINATION
5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
4 THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE CAMPUS, MEDICAL COLLEGE P. O.,
THIRUVANANTHAPURAM - 695 011.
SR. GOVERNMENT PLEADER SRI.V.MANU,
SRI.S.NIRMAL,STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.12.2020, THE COURT ON 21.12.2020 DELIVERED THE FOLLOWING:
W.P(C).No.28457/2020-F 2
.
JUDGMENT
Petitioner, who is a person with locomotor disability is aggrieved by the denial of her claim for special reservation in the category of Persons with Disability for admission to medical courses under the KEAM 2020.
2. Petitioner applied for admission to undergraduate professional courses under KEAM 2020 and National Eligibility cum Entrance Test [NEET (UG)] claiming special reservation for persons with disability. AS per Ext.P1 certificate issued by the Standing Disability Assessment Board of Taluk Head Quarters Hospital, Karunagappally, on 17.11.2017, the petitioner was found to have permanent orthopaedic disability of 45% on account of congenital deformity left upper limb (amputation at level of middle forearm). As per Ext.P2 NEET result she secured All India rank no 733189; OBC(NCL) category rank no.320582 and PH category rank no.1916. As per Ext.P4 letter dated 24.08.2020, the commissioner for Entrance Examinations-the 3rd respondent directed the petitioner to report at the Kollam Medical College on 27.08.2020 for medical examination in the light of Government Letter dated 23.08.2000. The petitioner thereupon reported before the Medical Board and the Medical Board issued Ext.P5 report, in which her disability was found to be 50% and they also found her "not eligible for course." In Ext.P6 report the State-Level Committee found that the petitioner is eligible for W.P(C).No.28457/2020-F 3 PwD quota, but not suitable for medical courses. Thereafter, the petitioner submitted an application on 09.11.2020 to the 3 rd respondent, requesting to include her in the PwD category. In answer to the request made by the petitioner for such inclusion, the 3rd respondent informed her as per Ext.P7 letter dated 16.11.2020, that the eligibility of a candidate with disability for undergoing medical course is assessed by a special disability assessment Board constituted under government orders; as per the report of special medical board the petitioner was found ineligible for admission to medical course; therefore it is not possible to consider her for allotment for medical and allied courses under KEAM. It is stated that the petitioner approached the Permanent Lok Adalat filing O.P.No.52 of 2020 seeking a direction to the respondents to include her in the PwD category in the KEAM rank list. As per Ext.P8 order, the Permanent Lok Adalat found that it does not have jurisdiction to decide the matter. The petitioner has thereupon approached this Court challenging the reports of the special disability board Ext.P5 and the State Level Committee Ext.P6 as well as the letter Ext.P7 of the 3rd respondent by which she was informed that she cannot be considered for medical and allied courses.
3. Sri.Sunilkumar, the learned Counsel appearing for the petitioner submits that the petitioner belongs to a very poor family and she was unable to approach this Court because her father was ailing from serious illness and he succumbed to death on 07.12.2020. It was argued that the petitioner is fully W.P(C).No.28457/2020-F 4 eligible for admission to MBBS course; sufficient number of candidates are not available for filling up all the seats reserved for PwD category. It was argued that the medical board which examined her was not constituted as ordered in Ext.P3 order dated 17.02.2020, according to which, the Director of Medical Education should be the Chairman of the medical board. It was vehemently argued that the medical board exceeded its powers in determining the suitability of the students for undergoing medical courses and their duty is confined to assessment of the disability.
4. On the other hand, Sri. V.Manu, the learned Senior Government Pleader on instructions pointed out that the reservation to PwD is governed by Clause 5.3 of the prospectus and the suitability of the candidates is also to be assessed by the medical board, as provided therein and in accordance with Appendix H1 of Graduate Medical Regulations issued by the MCI. Learned Government Pleader made available the report of the District Medical Board as well as the abstracts of the State Level Expert Committee which assessed the case of the petitioner.
5. It was pointed out that on account of Covid-19 pandemic medical boards were constituted in districts and assessment was made based on the examination made by such medical boards constituted as per various Government orders, as can be seen from Ext.P4 letter itself. State level committee has taken the decision as to eligibility of the candidates based on the W.P(C).No.28457/2020-F 5 reports. It was also pointed out that the assessment was made and the suitability of the petitioner was examined by the medical board strictly in tune with the Graduate Medical Education Regulations as amended in 2019, in tune with appendix H1. The learned Government Pleader pointed out that the petitioner has not raised any allegation of malafides against any of the members of the medical board and that none of them are interested in denying opportunity to any candidate. It is also pointed out that the petitioner did not raise any objection when the category list was published by the 3rd respondent. She has approached this Court at the last stage when all the allotments are over and just because a mop up allotment is scheduled on 20.12.2020, which is also over now. Suitability of the petitioner is assessed as per the Graduate Medical Education Regulations.
6. The learned Government Pleader made available the report of the medical board also which reads as follows:
"Report Disability assessment of Ms Amina S, Application No. 1196720 was done at government medical College column on 27/08/2020 as per direction from DME Kerala No. B1/4000/2019/DME dated 25/08/2020. Assessment of disability was done according to the prevailing disability act it is this wedding dresses not creation by Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) dated 4th January 2018) number 18.3, 18.3.1 Medical Authority and Instruments required for certification for locomotor disability, "Specialist in Physical Medicine and Rehabilitation or Specialist in Orthopaedics (Annexure 1) The order from DME B1/4000/2019/DME dated 25/08/2020 states that orthopaedic faculty is to be loaded in the board where there is no Department of PMR (Annexure 2). As per the Annexure XXIV (i), prospectus for admission specifying MCI guidelines regarding admission of students W.P(C).No.28457/2020-F 6 with specific disabilities under the rights of Persons with disabilities and with respect to admission in Medical Courses except BHMS courses state that "both hands intact with intact sensation, sufficient strength and range to motion are essential to be considered eligible for medical courses" (Annexure 3).
As per assessment, applicant has congenital absence of left forearm at the level of upper side, which constitute 50% of disability (Annexure 4). As per the MCI guidelines the candidate is not fit for medical course.
Sd/- Sd/-
HOD Orthopaedics Chairman Medical Board"
7. The reports of the Chairman of the Medical Expert
Committee as well as the abstract of the report of the experts in the State level committee are also made available, signed by the Chairman, State Medical Board as well as Chairman State- Level Committee with their decision "eligible for PwD quota but not eligible for courses applied." The Medical Board as well as the State-Level Expert Committee found her not suitable for medical and allied courses.
8. In the prospectus issued by the Government of Kerala for admission to professional degree courses, reservation for Persons with Disabilities (PD) is dealt with in Clause 5.3. While reserving 5% seats for candidates in the category of PD it is stated that the candidates seeking admission to medical courses would have to satisfy the eligibility criteria fixed by the Medical Council of India as given in Annexure XXIV(i) i.e Ext.P9 regulations. Under the provisions of the prospectus as well as the provisions in the Graduate Medical Regulations 1997 as amended in 2019, the percentage of disability alone is not the criteria for determining the eligibility of a candidate W.P(C).No.28457/2020-F 7 for admission in the PwD quota; they should also be found suitable for the same by the medical board.
9. The main contention of the learned Counsel for the petitioner is that the Director of Medical Education was absent in the medical board which examined the petitioner and that the Medical Board has no authority to examine the suitability of the petitioner/candidates.
10. It is relevant to note that Ext.P3 order, based on which the petitioner alleges the absence of Director of Medical Education, was issued on 17.02.2020 much before the restrictions on account of Covid-19 Pandemic were issued. A perusal of Ext.P4 call letter issued to the petitioner to appear for the medical examination would show that the said letter was issued stating that the Government had as per Government letter dated 23.08.2020 decided to constitute District Medical Boards instead of State level Medical Board on account of Covid-19 protocol. Therefore, the contention based on Ext.P3 order or as to the absence of DME is baseless.
11. Regarding the contention as to the authority of the medical board to examine the suitability of the candidate with disability, it is necessary to have a look at Clause 5.3 of the prospectus which reads as follows:
"5.3 preservation for persons with disability (PD): 5% of the seats available to State for allotment from the State rank list is reserved for candidates with benchmark disabilities for all courses in government /aided colleges as stipulated in Section 32, chapter VI of the Persons with Disabilities Act 2016. As per clause 2 (r) chapter 1 of the Act, 'Persons with benchmark disability' means a person with not less than 40% of the specified disability where W.P(C).No.28457/2020-F 8 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.
Generally, candidates who have a minimum of 40% disability alone will be eligible to apply for this quota. . Candidates seeking admission to medical courses (except BHMS course) will have to satisfy the eligibility criteria prescribed by the Central Council of Homoeopathy. (See Annexure XXIV) For claiming reservation under PwD category, certificate of disability from the district medical board certifying the percentage of degree of disability has to be produced before the state medical board at the time of medical verification.
The certificate of disability from the district medical board must be produced at the time of medical verification. No document/certificate is to be uploaded to the online application.
The state medical board constituted by the government under the chairmanship of DME consisting of medical experts in General Medicine, ENT, Neurology, Orthopaedic Surgery, Ophthalmology, Psychiatry and Physical Medicine and Rehabilitation, will examine the degree of physical disability of the candidates who are provisionally included in this category. The State Medical Board will have powers to review a certificate issued by the District Medical Board.
A State-Level Committee constituted by the Government under the Chairmanship of the Commissioner for Entrance Examinations consisting of the members in the medical board constituted under the chairmanship of DME, special invitees representing Engineering/Pharmacy/Medical/Agriculture/Veterinary/Forest ry/Fisheries specialists will take a final decision on the eligibility of a candidate for PWD quota as per the criteria fixed by various Central Councils and the suitability of the candidate to study a particular cause applied by him/her. Necessary orders constituting the State-Level Committee and State Medical Board will be issued by Government in due course and the same will be notified.
Only those candidates who are having a minimum 40% of any disability and found to be physically suitable by them for the courses opted by the candidates will be chosen for a course as only the physically fit can undergo the rigors of a professional course. The recommendations of the the State-Level Committee will be binding on the candidates. The selection of candidates under this category will be based on merit in the entrance examination and physical suitability and not on the basis of the decree of disability. Commissioner for Entrance Examinations will prepare and publish the list of candidates eligible for PWD quota based on the recommendations of State-Level Committee."W.P(C).No.28457/2020-F 9
The assessment is made in accordance with the Graduate Medical Education Regulations, 1997 issued by the MCI. Regulation 4(3) as amended by Amendment regulations 2019 notified in gazette of India dated 05.02.2019 provide for reservation of 5% seats in Government and aided higher educational institutions for candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act 2016, based on the merit list of NEET. For this purpose, specified disability contained in the schedule to the Right of Persons with Disabilities Act 2016 is annexed in Appendix G and the eligibility of candidates to pursue a course in Medicine with specified disability shall be in accordance with Appendix H. Appendix H was substituted by Appendix H1 as per amendment Regulation notified in the Gazette of India dated 14.05.2019, which provides for the guidelines regarding admission of students with disabilities under the Rights of Persons with Disabilities Act 2016 for admission to MBBS course. Note 1 to 3 in Appendix H1 read as follows:
"Note 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 (the Divyangjan)] on 15 June 2017'
2. The extent of 'specified disability' in any person shall be assessed in accordance with the "Guidelines for the purpose of assessing the extent of 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 W.P(C).No.28457/2020-F 10 Disabilities (the 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."
Under Appendix H1 of the Regulations (Ext.P9), a candidate with locomotor disability of 40% to 80% is 'eligible for medical course and eligible for reservation under PwD.' The specified disability of the petitioner would come under "f. others***"
such as amputation, Poliomyelitis, etc". The 3 asterisks for the others is explained as "***Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course."
12. As per Section 32 of the Right of Persons with Disabilities Act 2016, 5% reservation is admissible for persons with 'benchmark disabilities' in institutions of Higher Education. 'Persons with benchmark disability' is defined under Section 2(r) of the Right of Persons with Disabilities Act, 2016 as 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. 'Specified disability' is defined under Section 2(zc) of the 2016 Act as disabilities as specified in the Schedule.
13. In this context, it is relevant to note the judgment of the Apex Court in Vidhi Himmat Katariya v. State of Gujarat:
(2019) 10 SCC 20, while it was considering the cases where W.P(C).No.28457/2020-F 11 persons with locomotor disability claimed admission in accordance with the regulations which were in force prior to 2019 amendment. It is relevant to note the contentions raised by MCI in that case relating to the incorporation of Appendix H in the regulations, as observed in para.5 of the judgment:
"5. xxxxx It is submitted that MCI while dealing with the issue of persons with disability had formed an independent Expert Committee comprising of eminent doctors in various specialties. It is submitted that the amendments made in the Graduate Medical Regulations, 1997 vide MCI Notification dated 4-2-2019 are in accordance with the report/recommendations furnished by an independent expert committee headed by the Director, AIIMS, New Delhi. 5.1. It is further submitted by the learned counsel appearing on behalf of Board of Governors that a medical student pursuing MBBS course after becoming a doctor will be treating humans and it is very essential that a student is able to acquire the necessary skill and expertise during the MBBS course. It is submitted that Regulation 4(3) has been substituted in the Graduate Medical Education Regulations, 1997 vide MCI Notification dated 4-2-2019, whereby it is provided that 5% of the seats shall be reserved for "persons with benchmark disability" as specified under the 2016 Act. It is submitted that the substituted Regulation 4(3) further provides that the specified disability given in the Schedule to 2016 Act is adopted and incorporated in Appendix "H" to the Regulations. It is submitted that it further provides that the eligibility of the persons with specified disability to pursue course in medicine has to be dealt with in accordance with Appendix "H" -- Guidelines regarding admission of students with "specified disabilities" under the 2016 Act with respect to admission in MBBS course."
The Apex Court did not grant any relief to the petitioners therein as it found that experts in the field had found them not eligible in accordance with the eligibility criteria contained in Appendix H. The dictum laid down therein squarely applies to the present case.
14. As contended by Sri.Manu, the learned Senior Government Pleader in the judgment in W.P(c).No.16743/2019, W.P(C).No.28457/2020-F 12 this Court while considering a similar case where the assessment of suitability by the medical board was challenged, repelled their claim taking note of the introduction of Appendix H1 by way of amendment regulations of 2019, by which the authorities are enabled to assess the suitability of the candidates. The said judgment was upheld by a Division Bench of this Court in W.A.No.1694 of 2019.
15. Therefore, when the competent authority with expertise in the field has assessed the disability as well as the suitability of the petitioner in accordance with the provisions in the Regulations as well as the prospectus and the orders issued by the Government, this Court is not expected to sit in appeal over it.
The Writ Petition is accordingly dismissed.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(C).No.28457/2020-F 13 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL BOARD OF TALUK HEADQUARTERS HOSPITAL, KARUNAGAPALLY.
EXHIBIT P2 TRUE COPY OF THE PRINT OUT OF THE NEET RESULT OF PETITIONER.
EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.35/2020/H&FWD DATED 17.02.2020.
EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATION DATED 24.08.2020.
EXHIBIT P5 TRUE COPY OF THE REPORT OF THE MEDICAL BOARD.
EXHIBIT P6 TRUE COPY OF THE REPORT OF THE STATE-LEVEL COMMITTEE.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 16.11.2020. EXHIBIT P8 TRUE COPY OF THE ORDER IN I.A.NO.112/2020 IN OP 52/2020 OF THE PERMANENT LOK ADALATH.
EXHIBIT P9 TRUE COPY OF THE GRADUATE MEDICAL EDUCATION REGULATION (AMENDMENT) 2019.
EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE GUIDE LINES FOR ADMISSION OF PERSONS WITH SPECIFIED DISABILITIES.
EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER IN WP(C) NO.
27225/2020.