HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 108/2022 Vipin Kumar S/o Shri Rajesh Kumar, Aged About 21 Years, R/o By Pass Road, Near Dhindhwaa Circle, Pilani, District Jhunjhunu (Raj.).
----Petitioner Versus
1. Neet Ug Medical And Dental Admission/counseling Board-
2021, Through Its Chairman, Government Dental College (Ruhs College Of Dental Sciences), Jaipur.
2. The Secretary, Department Of Medical Education, Government Of Rajasthan, Jaipur.
3. The Principal And Controller, Sawai Man Singh Hospital, Jaipur.
4. The Chairman, National Medical Commission, Dada Dev Mandir Road, Sector 8, Dwarka, New Delhi 110077.
5. The Registrar, Medical Council Of India, Sector 8, Pocket 14 Phase-I, Dwarka, New Delhi 110077.
6. The Senior Director (Exam), Neet (Ug-2021), National Testing Agency, C-20 1A/8, Sector 62, Iitk Outreach Centre, Noida 201309.
----Respondents For Petitioner(s) : Mr. Vivek Firoda for Mr. Mahaveer Bishnoi, through VC For Respondent(s) : Mr. Manish Vyas, AAG] Mr. Anil Kumar Khatri], through VC JUSTICE DINESH MEHTA Order 20/01/2022
1. The petitioner has challenged the certificate dated 13.12.2021, issued by the Disability Assessment Board, wherein the petitioner has been held ineligible on account of having (Downloaded on 21/01/2022 at 08:54:09 PM) (2 of 5) [CW-108/2022] disability less than 40% which makes a candidate entitled to claim reservation under Person with Disability (in short, 'PwD') Category.
2. The facts relevant for the present purposes are that the petitioner, being desirous of pursuing medical course, applied in the PwD Category on the basis of a certificate of disability showing 41% locomotor disability.
3. The petitioner's result was declared and his name was reflected in the list of PwD Category candidates called for counselling.
4. The petitioner appeared before the Disability Assessment Board, SMS Hospital, Jaipur which declared the petitioner to be unfit to pursue medical course vide its report dated 13.12.2021.
5. The matter came up before this Court on 12.01.2022. It was submitted that as per the Appendix H-1 of notification dated 13.05.2019, the Disability Assessment Board was required to give percentage wise disability. Hence, this Court ordered for re- assessment of the petitioner's disability and the petitioner was directed to appear before the Disability Assessment Board on 17.01.2022.
6. Pursuant to the order aforesaid, the petitioner appeared before the Disability Assessment Board, who after examining the petitioner, prepared a report dated 18.01.2022 showing 28% disability, which is less than the minimum benchmark disability, rendering the petitioner ineligible to pursue medical studies. A copy of the report has been placed before this Court, which is taken on record.
7. Mr. Firoda, learned counsel for the petitioner, argued that the Disability Assessment Boards have seriously erred in holding the petitioner ineligible to claim reservation. (Downloaded on 21/01/2022 at 08:54:09 PM)
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8. It is contended that the petitioner is having a valid disability certificate issued by the competent authority and the same is binding.
9. It is argued that the petitioner is having 41% disability and is, therefore, entitled to be considered under PwD Category. And that the Disability Assessment Board was required to examine the functional capacity of the petitioner that he can or cannot pursue medical course and not the percentage of disability.
10. Mr. Manish Vyas, learned AAG, appearing for the respondent
- State, argued that as per Clause 5.3.3, the petitioner is required to subject himself before the Disability Assessment Board and the assessment made by the Disability Assessment Board as per the relevant rules and guidelines/notification in this regard, is required to be considered final.
11 It is submitted that petitioner has been subjected to medical assessment by the board twice; and both the times, the petitioner was found to be ineligible and, therefore, this Court may not interfere in the present case.
12. Heard.
13. Admittedly, the petitioner has been subjected to assessment of his disability by the medical board on two occasions and, both the times, he has been found ineligible for claiming reservation under PwD Category.
14. That apart, clause 5.3.3 and 5.3.4 of the information booklet clearly provides that a candidate applying under PwD Category will be examined by the Disability Assessment Board and it will examine the petitioner's disability as per the relevant law and notification. Since the petitioner's disability has been found to be less than 40%, his very right of being considered under PwD (Downloaded on 21/01/2022 at 08:54:09 PM) (4 of 5) [CW-108/2022] Category is under serious cloud. Hence, question of testing petitioner's functional capacity does not arise at all.
15. In the judgment dated 09.11.2017 in the case of Hanuman Lal Jat Vs. Secretary, Ministry of Home Affairs & Ors. [D.B. Civil Special Appeal Writ No.1259/2017], Division Bench of this Court has held that the Court cannot sit over the opinion given by the medical boards. The relevant part of the judgment reads thus:-
"The Ld. Single Judge taking note of report of the Review Medical Board was not inclined to interfere in its equitable jurisdiction u/Art.26 of the Constitution and after we have heard counsel for the appellant we too are of the view that this Court does not hold any expertise on the subject and report of the medical Board has to be given its due precedence and that apart it is not case of the appellant that the Medical Board or the Review Medical Board was not constituted as per the mandate/requirement of law or either Member of the Board was biased, in absence whereof what being observed by the Medical Board in its report has to be given its due credence/precedence and we find no reason to interfere unless there is contemporary evidence on record to the contrary and the appellant placed reliance on the certificate issued by a doctor of JLN Hospital, Ajmer who even does not know the kind of job which a constable has to discharge in Border Security Force and his opinion regarding medical fitness will not supersede the view which the Medical Board or the Review Medical Board has expressed & considered by the Ld. Single Judge under its order impugned."
16. This Court is of the considered view that the two reports given by competent Medical Boards constituted by the reputed institution cannot be given a go-bye. In absence of any malafides alleged against the medical board, this Court does not find any reason to interfere in the present writ petition and pronounce upon the reports given by the experts of the field, when this Court has hardly any knowledge much less proficiency.
17. The writ petition, therefore, fails. (Downloaded on 21/01/2022 at 08:54:09 PM)
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17. The stay application also stands disposed of accordingly.
(DINESH MEHTA),J 9-skm/-
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