Dr. Namrata Anil Ghorpade vs The State Of Maharashtra
2012 Latest Caselaw 150 Bom

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            IN THE HIGH COURT OF  JUDICATURE AT BOMBAY.




                                                                           
                 ORDINARY ORIGINAL CIVIL JURISDICTION

                       WRIT PETITION NO.2035 OF 2012




                                                   
     Dr. Namrata Anil Ghorpade               )
     Age Adult, Occu. Doctor,                )
     R/at. Sent Monica College,              )




                                                  
     Savedi Road, Ahmednagar-414003          )..Petitioner

                 Versus

     1.The State of Maharashtra              )




                                    
     2.The Secretary, Medical Education      )
        and Drug Department of 
                       ig                    )
        Maharashtra, Mantralaya,             )
        Mumbai.                              )
     3.The Direector, The Direectorate       )
                     
        of Ayurveda, Maharashtra             )
        State, Mumbai, Government            )
        Dental College and Hospital          )
        Building, 4th Floor, St. George's    )
        Hospital Compound, P.Dmello          )
      


        Road, Fort, Mumbai-400 001.          )
     4.The Dean, (Designated Authority       )
   



        R.A. Podar Medical College           )
        (Ayurvedic), Dr. Annie Besant        )
        Road, Worli, Mumbai-400 018.         )..Respondents.





     Mr. Sachin Dhakephalkar, for the petitioner.
     Mr. G.W. Mattos, A.G.P. For respondents.

                       CORAM:       MOHIT  S. SHAH, C.J.  &
                                    N.M. JAMDAR, J.

DATE : 09 October 2012.

ORAL JUDGMENT: (Per Chief Justice):

In this petition under Article 226 of the Constitution, the petitioner has prayed for direction to the respondent authorities to take fresh selection process of PGA-CET 2012 for the admission to M.D./M.S. (Ayurvedic) Post Graduate Courses particularly in physically handicapped quota.

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     2.            The   petitioner   passed   her   H.S.C.   Examination     in 




                                                                               

February, 2004 with 58% marks and thereafter secured admission

for BAMS degree course in CSMSS Ayurved College, Aurangabad. The said admission was secured as a general candidate and not as a physically handicapped candidate. The petitioner got BAMS degree

in November 2009 with 56.45% marks and after completing her internship in the year 2010-2011, the petitioner appeared at the PGA- CET 2012 Examination for the M.D/M.S. (Ayurvedic) Post Graduate Course. The petitioner secured 10th position amongst students of the

Physically Handicapped category. Four seats for admission to the

M.D/M.S. (Ayurved) are available for the current academic year. The final merit list was declared on 9 July 2012 and the petitioner's

name figured at Serial No.3 in the Physically Handicapped students quota.

3. When the petitioner appeared for counseling and verification of the documents on 14 September 2012, the petitioner

was informed by the Verification Committee that the petitioner was not eligible for admission in the physically handicapped students quota, because her disability could not be considered as disability of

locomotive disability of lower limbs between 50% and 70%. Hence the present petition.

4. The learned counsel for the petitioner had relied upon Rule 5.7(3) of the Rules called "Procedure for Selection to Post Graduate Courses in Ayurveda for 2012-13" published by the Directorate of Ayurved (Competent Authority) Maharashtra State. The said Rule reads as follow:-

"5.7 Physically Handicapped:

1) As per Postgraduate Medical Education Regulation and government resolution dt. 11-01-2011 and central

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government guidelines & Amendment Notification No.MCI.19(1)/2008-Med/54470, Dt. 25-03-2009

1(a). 3% seats of the annual sanctioned intake capacity

shall be filled up by candidates with lomotory disability of lower limbs between 50% to 70%.

Provided that in case any seat in this 3% quota remains

unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs

between 40% to 50% - before they are included in the

annual sanctioned seats of State Quota.

2) ...........

3) Candidate is required to submit the proof of his/her disability by way of a certificate (issued in year 2012) in prescribed proforma form Civil Surgeon of a District

Hospital/Medical Board/Medical Superintendent of a Government Medical College/Hospital in Maharashtra; or

from the Director of All India Institute of Physical Medicine and Rehabilitation, Haji Ali, Mumbai; (as per Prescribed Proforma) at the time of verification of disability. However,

Verification of the disability will be carried out by Special Medical Board constituted for this purpose by Competent Authority and decision of the Special Medical Board will be

final. The date and place of Special Medical Board shall be communicated by the way of notifications."

5. Learned counsel for the petitioner submitted that when the petitioner had already produced before the respondents the certificates issued by Civil Surgeon of District Hospital at Ahmednagar certifying that the petitioner was having locomotive disability to the extent of 50%, the petitioner could not have been

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considered as ineligible for admission for the Post Graduation in physically handicapped students quota. Serious grievance was made

that without verification of her disability by the Special Medical

Board as required by the Rules, no other authority should have declared the petitioner as ineligible.

6. In view of the above Rules, by our order dated 28 September 2012 we had directed the respondents to constitute a Special Medical Board in accordance with the above Rules and to send the petitioner for examination by the said Medical Board for

verification of her disability. The said order specifically mentions that

disability of spine must also be considered as a locomotor disability and that the petitioner cannot be excluded from consideration for

the seat reserved for physically handicapped candidates on the ground that disability is that of spine and not on lower limbs.

7. Accordingly the petitioner was examined by the Special Medical Board comprising of the following:-

1. Dr. Sanjay Jagtap, Professor & HOD, Orthopedic Department, Grant Medical College (Chairman)

2. Dr. Vernan Velho, Professor & HOD, Neurosurgery, Grant Medical College, (Member)

3. Dr. Kamlesh Jagiasi, Associate Professor, Neurology Department, Grant Medical College

4. Manohar Pajai, Physiotherapist, HOD, Department of Physiotherapy, Grant Medical College.

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8. The said Board examined the petitioner on 4 October 2012 and had submitted the following report:-

"Name of the Patient: Namrata Anil Ghorpade

Clinical Findings:

Clinical Examination of spine: Step felt at L5-S1 S.L.R. Is normal bilaterally.

Muscle power Grade 5 of both Lower Limbs. X-ray shwos Grade II Spondylolisthesis of L5 over S1 which is also suggestive on M.R.I.

Clinically patient walks without support. We are of the opinion that this is correctible condition.

In view of above findings, her Disability amounts to 25% at present."

In view of the above, Mr. Mattos, learned A.G.P., has submitted that the petitioner's disability is found to be 25%, which is less than 40% which shall be minimum disability for seeking benefit of reservation

of seats for physically handicapped students. It is submitted that the disability has to be between 40% and 70%. The petitioner does

not fall within the same bracket. The petitioner cannot be considered to be eligible for admission on the basis of the physically

handicapped candidates quota.

9. Learned counsel for the petitioner, however, submitted that the respondents did not follow the proper procedure before

giving provisional admission to three other students, one of whom was less meritorious than the petitioner.

10. Having heard learned counsel for the parties, while we are unable to give any relief to the petitioner as the petitioner's disability has been assessed by the Special Medical Board as less than 40%, we cannot uphold the procedure being followed by the respondents to grant provisional admission on the basis of prima

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facie opinion formed by the two officers, may be Medical Officers of the Ayurvedic Department. Granting provisional admission by

making prima facie verification of disability cannot be said to be

proper procedure in accordance with the Rules. The decision to give admission to a student of a seat reserved for the physically handicapped candidate can only be taken after the Special Medical

Board examines the concerned candidate. It would not be safe to leave even a prima facie decision to be taken by the persons who are not part of a Special Medical Board. Otherwise the procedure would not only be contrary to the Rules for admission to the medical

course, but the situation could also be misused in a given case. We

may not be treated to have expressed any opinion about such an abuse or misuse of the procedure in the present case where three

other candidates were given provisional admission without having been examined by the Special Medical Board as the examination subsequently conducted by the Special Medical Board on 24

September 2012 did find them to be falling within the definition of physically handicapped students with disability between 50% and

70% as required by the Rules. Hence the Authorities henceforth shall follow the procedure prescribed in the above quoted Rules without making any deviation for the purpose of granting provisional

admission.

11. Hence, while dismissing the petition we direct the

respondents to ensure that admissions to seats in Medical/Engineering Colleges reserved for physically handicapped students shall be given only after receiving the report of the Special Medical Board constituted for verification of the disability of the concerned candidates. After notifying the constitution of the Special Medical Board, the date and place of verification by the Special Medical Board shall be intimated to candidates who have applied for admission to the physically handicapped students quota, with

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certificates of civil surgeons. In case where number of candidates applying under the physically handicapped quota far exceeds the

number of seats available, it may become time consuming and

detrimental to the timely completion of the admission process, to send all candidates at once to the Board. In such circumstances, it will be open to the authorities to send first three meritorious

candidates, per seat, to the Medical Board. In case none of the three candidates are found suitable by the Medical Board then next three candidates could be sent and so on.

12. The petition is accordingly disposed of. The ad-interim

stay granted earlier stands vacated.

CHIEF JUSTICE

(N.M. JAMDAR, J.)