Gauhati High Court
Mamshadul Alom vs The State Of Assam And 2 Ors on 19 December, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
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GAHC010220922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6846/2022
MAMSHADUL ALOM
S/O- ABDUL KADIR
R/O- SABAJPUR
MURAJHAR BAZAR
HOJAI
PIN- 782439
DIST.- HOJAI
ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS.
THROUGH- THE COMM. AND SECY.
TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY-06
2:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIX MILE
KHANAPARA
GHY-22
3:THE NATIONAL MEDICAL COUNCIL
REP. BY ITS SECRETARY GENERAL
NEW DELHI.
------------
Advocate for : MD. I HUSSAIN
Advocate for : SC
HEALTH AND F W appearing for THE STATE OF ASSAM AND 2 ORS.
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
19-12-2022 Heard Mr. I. Hussain, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing counsel, Health and Family Welfare Department for the respondent Nos. 1 & 2. Also heard Mr. D. K. Baidya, learned counsel appearing on behalf of Mr. A. M. Bora, learned Senior Standing counsel, National Medical Council for the respondent No. 3.
2) Matter pertains to admission in the 1 st year MBBS/BDS courses for the academic Session 2022-2023 in the Government Medical/Dental Colleges of Assam under the 5% reserved quota of 'Persons with Disability' (PwD) (DIVYANG) category under the State quota.
3) The petitioner Mamshadul Alom appeared in the National Eligibility-cum-Entrance Test (NEET) Examination, 2022 and passed the same obtaining 124 marks out of total marks of 720, result of which was declared on 07.09.2022.
4) The petitioner has been diagnosed with "Locomotor Disability" with 50% permanent disability in relation to his right upper limb and in that regard the Medical Authority, Hojai, Assam under the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India on 11.01.2018 certified to that extent. As such, the petitioner as a physically disabled person claimed for admission in the 1 st year MBBS/BDS courses in Government Medical & Dental Colleges of Assam for the Session of 2022-2023 under the 5% reserved quota of PwD category under the State quota as per his entitlement as provided in the guidelines of the Union of India under the Rights of Persons with Disability Act, 2016 and the provisions of the Medical Colleges and Dental Colleges of Assam (Regulations on Admission into 1st year MBBS/BDS courses) Rules, 2017 amended in 2022 under the State quota seats of Assam.
5) For that purpose, the petitioner was called for counseling for his admission in the 1 st year MBBS/BDS course in Government Medical & Dental Colleges of Assam for the Session of 2022- 2023 and for his examination to determine his disability. The petitioner accordingly appeared before the concerned Disability Assessment Board on 20.10.2022.
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6) On examining the petitioner on 20.10.2022, the said Board assessed that - "the petitioner has 50% of Locomotor Disability having 'Post-Traumatic deformity of the Right Upper Limb with gross wasting and restriction of movements of fingers and wrist with weakness". On making such assessment, the said Board remarked that the petitioner is not eligible for admission in the Government Medical Colleges of Assam as per NMC Guidelines under the 5% reserved quota of PwD category. Consequently, the Director of Medical Education, Assam in its Educational Notice issued under No. DME/UG/234/ 2022/20668 dated 22.10.2022 notified that the petitioner is not eligible for admission into 1st Year MBBS/BDS Course in the Government Medical and Dental Colleges of Assam for the Session 2022-2023 under the PwD (DIVYANG) category.
7) Being aggrieved with the same, the petitioner has preferred this writ petition.
8) Respondents in the Health and Family Welfare Department of the State filed an affidavit in the matter to which the petitioner has filed his reply.
9) Mr. Gogoi, learned Standing counsel, Health and Family Welfare Department placed the Information Bulletin relating to National Eligibility-cum- Entrance Test (Under Graduate) - 2022 and also the Notification dated 04.02.2019 published in the Gazette of India Extraordinary on 05.02.2019 as well as the Notification dated 13.05.2019 published in the Gazette of India Extraordinary on 14.05.2019, both issued by the erstwhile Board of Governors in super-session of Medical Council of India, presently known as National Medical Commission, pertaining to the Appendix "H" of said Notification dated 04.02.2019 and Appendix "H-1" of said Notification dated 13.05.2019 relating to the "Graduate Medical Education, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997" that relates to "Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS."
10) Appearing on behalf of the National Medical Commission, (erstwhile Medical Council of India), Mr. A. M. Bora, learned Senior Standing counsel clarified the stand of the said Commission with regard to the two specific Notifications dated 04.02.2019 as well as 13.05.2019 issued by the erstwhile Medical Council of India pertaining to the Appendix "H" and Appendix "H-1" of the "Graduate Medical Education Regulations, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997", that relate to "Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to Page No.# 4/8 admission in MBBS" under Locomotor Physical Disability Type with Specified Disability of (a) Leprosy cured person*, (b) Cerebral Palsy**, (c) Dwarfism, (d) Muscular Dystrophy, (e) Acid attack victims and (f) Others*** such as Amputation, Poliomyelitis etc. and the Asterix* Attention should be paid to loss of sensation in fingers and hands, amputation, as well as involvement of eyes and corresponding be looked at; Esterix** Attention should be paid to impairment of vision, hearing, cognitive function etc and corresponding recommendations be looked at and Asterix*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course - remained unchanged inspite of said Appendix "H" notified on 04.02.2019 was substituted by Appendix "H-1" notified on 13.05.2019.
11). As per the Court's order dated 28.11.2022 passed in this proceeding and the communication No. DME/UG/234/2022/22338 dated 29.11.2022 of the Director of Medical Education, Assam, the Principal-cum-Chief Superintendent of the Gauhati Medical College and Hospital, Guwahati reconstituted the Disability Assessment Board consisting of Professor & Head of the Department of Orthopaedics; Professor of Psychiatric, Professor of Neurology and an Assistant Professor of Haematology of the Gauhati Medical College & Hospital, Guwahati for reassessment of disability status of the petitioner.
12) In pursuance of the Court's order dated 28.11.2022; the petitioner appeared before the said reconstituted Disability Assessment Board on 02.12.2022.
13) After assessing the disabilities of the petitioner for his admission in the 1 st year MBBS Course for the session 2022-2023 under the 5% reserved quota for Persons with Disabilities (DIVYANG) category in the Government Medical Colleges of Assam under the State quota, the said reconstituted Disability Assessment Board on examining the petitioner on 02.12.2022 found as follows:-
· that Mamshadul Alom is found to have a case of locomotor disability (Post- Traumatic) affecting the right forum, wrist and hand with gross wasting and redial deformity of wrist.
· He is having gross weakness of right forearm and hand with he fails to make a grip with right hand. His disability status stands at 50%.
14) The said reconstituted Disability Assessment Board by its report dated 02.12.2022 opined that - although the petitioner's disability is more than 40%, but as per the Gazette of India Page No.# 5/8 Extraordinary, Part-III - Section 4, Notification No. MCI-34/(41)/2018-Med./170045, dated New Delhi the 4th February, 2019 vide Appendix-H - the Guidelines regarding admission of Students with specified disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS, requires both hands intact with intact sensation with sufficient strength and range of motion that are essential to be considered for eligible for medical course and therefore, the petitioner is not eligible for medical admission.
15) On being enquired as to whether Asterix*** of the Appendix-H of the Guidelines regarding admission of Students with specified disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS, vide Notification dated 04.02.2019 shall be applicable to the case of the petitioner or not, both the counsels representing the respondents in the Health and Family Welfare Department of the State as well as National Medical Commission submitted that the same is applicable to "Specified Disability" like - Dwarfism, Muscular Dystrophy, Acid attack victims and others, such as Amputation, Poliomyelitis, etc. under Locomotor Type of Disabilities including that of the petitioner, who is having such Locomotor disability as found by the concerned Disability Assessment Board on 20.10.2022 as well as the reconstituted Disability Assessment Board on 02.12.2022.
16) Mr. Gogoi, learned Standing counsel for the respondents in the Health and Family Welfare Department, Assam stated that the Appendix-V of the Information Bulletin relating to National Eligibility-cum-Entrance Test (Under Graduate) - 2022 contains the Notification dated 13.05.2019 issued by the Medical Council of India pertaining to the Appendix "H-1" of the "Graduate Medical Education Regulations, (Amendment) 2019" amending the "Regulations on Graduate Medical Education, 1997", that relate to "Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS" under different types of physical disabilities including the Locomotor Physical Disabilities at Serial No.1, which clearly reflects that to consider a student for admission in MBBS course with Specified Locomotor Disabilities under the Rights of Persons with Disabilities Act, 2016 requires both hands intact with intact sensation having sufficient strength and range of motion that are essential to be considered for eligible for medical course, about which the petitioner is aware of.
17) Mr. Gogoi, learned Standing counsel for the respondents in the Health and Family Welfare Department, Assam also relied on the decision of a three Judges Bench of the Hon'ble Apex Court Page No.# 6/8 in the case of Vidhi Himmat Katariya and Others -Vs- State of Gujarat and Others , reported in (2019) 10 SCC 20, wherein the Hon'ble Supreme Court of India considered the Notification dated 04.02.2019 issued by the Medical Council of India pertaining to the Appendix "H" of the "Graduate Medical Education Regulations, (Amendment) 2019", which is similar to said Appendix "H-1" of the Notification dated 13.05.2019 issued by the Medical Council of India, the relevant Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS and uphold the relevant essential eligibility criteria as mentioned in Appendix "H" - "Both hands intact, with intact sensation, sufficient strength and range of motion".
18) On the other hand, Mr. Hussain learned counsel for the petitioner submitted that since the Disability Assessment Board on both the occasions found that the petitioner within the 40-80% of Locomotor Disability Range, he is eligible for Medical Course, eligible for PwD Quota as provided in both the Notifications dated 04.02.2019 as well as 13.05.2019, the relevant Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS issued by the Medical Council of India. Mr. Hussain, in support of his argument relied on the Judgments of Madhya Pradesh High Court in the case of Soyab Khan -Vs- Union of India and others, decided on 20.04.2022 and of Kerala High Court in the case of Aswathy. P -Vs- Union of India and other s, decided on 25.01.2021 and also stated that in the case of Aswathy. P, the Kerala High Court considered the case of Vidhi Himmat Katariya and Others decided by the Hon'ble Apex Court (supra). Mr. Hussain also relied on a recent order passed by a Co-ordinate Bench of this Court on 04.11.2022 in W.P.(C) No. 6823/2022, in the case of Dhritishree Baruah -Vs- The State of Assam and Another.
19) Considered the arguments of the parties as well as the judgments and decisions relied by them. The Information Bulletin relating to National Eligibility-cum-Entrance Test (Under Graduate)
- 2022 contains various provisions in different Chapters and Appendixes including the counselling, provisions, facilities and reservation policy for admission to MBBS and BDS courses for admission under State Quota Seats as well as for candidates claiming the PwD category.
20) The petitioner claimed for Admission in the 1st year MBBS/BDS course for the academic session of 2022-2023 under the State Quota Seats reserved for PwD category having his Locomotor Physical Disability that is more than 40% and less than 80%. For that purpose, the Page No.# 7/8 Disability Assessment Boards examined the petitioner twice and on both the occasions two different Disability Assessment Boards found that the petitioner is unfit for medical admission on the basis of NMC Guidelines as specified in the Appendix "H". The NMC have clarified that Appendix-H and Appendix "H-1" notified by the Medical Council of India on 04.02.2019 and 13.05.2019, respectively, relating to the Guidelines regarding admission of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016 with respect to admission in MBBS are same. The Disability Assessment Boards that examined the petitioner consists of experts in the medical field, who have opined that the petitioner is not eligible for medical admission on the basis of the relevant essential eligibility criteria as mentioned in Appendix "H" that requires - "Both hands intact, with intact sensation, sufficient strength and range of motion".
21) It is also seen that the judgment of the Kerala High Court in the case of Aswathy. P -Vs- Union of India and others, relied by the petitioner relates to person suffering from Cerebral Palsy and not under clause "others" as provided in the Appendixes "H" and "H-1" noted above.
22) The medical experts while examining physical disability of the petitioner found that he suffers from locomotor disability (Post-Traumatic) affecting the right forearm, wrist and hand with gross wasting and redial deformity of wrist and he has gross weakness of right forearm and hand by which he fails to make a grip with right hand, where his disability status stands at 50%. Accordingly, those medical experts on physical examination of the petitioner, following the said Appendix "H" notified by the Medical Council of India on 04.02.2019, found him to be not eligible for admission in MBBS of students with "specified disabilities" under the Rights of persons with Disabilities Act, 2016, since for such admission of students with "specified disabilities" under the PwD category in such medical course, the requirement is that - both hands should be intact, with intact sensation, sufficient strength and range of motion.
23) It is also seen that there is no challenge to those Appendixes - "H" and "H-1" of the Medical Council of India, notified on 04.02.2019 and 13.05.2019, respectively. Moreover, there is also no allegation of mala fide against the Disability Assessment Boards consisting of medical experts that examined the physical disability of the petitioner for his admission in the MBBS course under PwD category.
24) It is well settled by the Hon'ble Supreme Court that when the experts in the field have Page No.# 8/8 opined, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts.
25) In the present case, the Disability Assessment Boards consisting of medical experts, after examining him, opined against the petitioner for his medical admission and as such, the Court in exercise of the power under Article 226 of the Constitution of India cannot seat as an appellate authority against the opinion formed by such medical experts.
26) Accordingly, this writ petition stands dismissed.
JUDGE Comparing Assistant