Bombay High Court
Pragati D/O Siddharth Motghare vs The Commissioner And Competent ... on 21 September, 2017
Bench: B.P. Dharmadhikari
WP.5376.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5376 OF 2017
Pragati d/o Siddharth Motghare,
aged about 18 years, Occ. Student,
R/o Prem Nagar, Pauni,
Bhandara-441910. .... PETITIONER.
// VERSUS //
1] The Commissioner & Competent
Authority, State Common Entrance
Test Cell, Maharashtra State,
Mumbai, 305, Govt. Polytechnic
Building, Kherwadi, Ali Yawar
Jung Marg, Bandra (E),
Mumbai-400051.
2] Civil Surgeon,
General Hospital, Bhandara,
3] Directorate, Medical Education
& Research, St. George Dental
College Premises, Behind C.S.T.,
Fort, Mumbai,
4] Secretary, Ministry of Social
Justice & Empowerment, Shashtri
Bhawan, New Delhi. .... RESPONDENTS
Mr. S.R. Narnaware, Advocate for petitioner,
Mr. M.K. Pathan, Assistant Government Pleader for respondent nos.
1 to 3.
CORAM : B.P. DHARMADHIKARI & ARUN D. UPADHYE, JJ.
DATED : SEPTEMBER 21, 2017.
WP.5376.17
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).
1] Rule. Rule made returnable forthwith. Heard the learned
Counsel for the parties finally.
2] Considering the nature of controversy, it has become
necessary to decide the controversy finally at the stage of admission
itself. Accordingly, on 14.8.2017 we have issued notice for final
disposal and it was made returnable on 21.8.2017. The exercise of
filing affidavits continued upto 18.9.2017. Thereafter, we have taken
up the matter today again.
3] During earlier hearing, controversy whether vacancies
existed or not arose and on 7.9.2017 we were required to pass an
order and time was given to the petitioner to make definite statement
in this respect. On 14.9.2017 we have taken note of statement made
by the learned A.G.P. that out of total 75 seats meant for PWDs.
(person with disabilities) only 12 seats could be filled in by 7.8.2017
and thereafter leaving two seats as per orders of Aurangabad Bench,
61 seats were surrendered to General Quota. Learned A.G.P.
pointed out that all seats were filled till after 30.8.2017, there is no
vacancy. This date "30.8.2017" has inadvertently been typed as
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"30/01/2008" in order of this Court dated 14.9.2017.
4] It is to be noted that on 14.8.2017 this Court has ordered
that though admission process undertaken by respondents would
continue, one seat therein shall be filled in provisionally.
5] It is in this backdrop that parties have addressed the Court
today finally.
6] Mr. S.R. Narnaware, learned Advocate for petitioner,
submits that petitioner, otherwise a physically normal person,
because of electrocution, lost lower limb in 2011. She suffered
amputation above knee and hence, was diagnosed "disabled to the
extent of 60%" on 21.9.2011. This was temporary determination and
on 14.3.2012 very same Board determined disability of 70%
permanently.
7] The petitioner passed H.S.S.C. examination in 2016-17
and secured 547 marks out of total 650 marks, i.e. 84%. She
appeared in NEET-UG-2017 and succeeded in it. Her overall rank
was 331124 and category rank was 31357 with category PH rank 37.
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It is claimed that she secured third position in Girl students in
Vidarbha region. She was examined by Competent Authority for her
admission on 1.8.2017 and said authority declared percentage of
disability to be 80%. It is pointed out that because of this variance,
petitioner obtained disability certificate again from Competent
Authority and that authority on 3.8.2017 determined disability to be
80% only.
8] In merit list displayed for the purposes of admission after
notice dated 7.8.2017, name of petitioner has been placed at serial
no. 23 and she is found "not eligible" for admission in PWD (Person
With Disability) category. However, she has been found eligible in
General Category.
9] Mr. S.R. Narnaware, learned Advocate for petitioner, on
the basis of these facts submits that 80% disability or amputation
above knee does not disqualify petitioner from seeking admission to
MBBS course in general category. If this be the position, physical
disability apparent to everybody cannot be ignored and petitioner
must be treated as 'person with disability'. He points out that only 12
vacancies out of total 75 were filled in through PWD and remaining
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were required to be surrendered in State Quota for admission in open
category. He is relying upon Division Bench judgment dated 5.8.2011
in Writ Petition No. 5900/11 at Bombay (Shaikh Roshan Jahan
Jawwad Ahmed .vs. State of Maharashtra & others) to urge that
there the extent of disability assessed at 88.33% was directed to be
reduced to 70% and that student was given admission and has
completed the course. The learned Counsel seeks parity and submits
that distinction needs to be made between physical disability and
functional disability.
10] Mr. M.K. Pathan, learned Assistant Government Pleader
for respondent nos. 1 to 3, has relied upon reply affidavits. He points
out that this Court did not stay admission process in PWD category or
then did not direct respondents to keep a seat vacant for petitioner.
Various Court matters were going on at different Benches and in
absence of such a specific stay, direction that seat to be filled in
should be provisional escaped attention. He submits that all Court
orders were scrupulously obeyed and in this matter there was no
other intention. The slip is accidental but then now after 30.8.2017
vacancies are not available. He also points out that supernumerary
seat cannot be created and if Medical Council of India (MCI) allows it,
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appropriate decision in this respect can be taken. Medical Council
of India is not party to the present petition.
11] Without prejudice to above submissions, he states that
PWD is a technical concept which needs to be construed strictly
within the four-corners of the Regulations prescribing it, i.e. Graduate
Medical Education Regulation, 1997. He points out that locomotory
disability of lower limbs between 50% to 70% alone qualifies for
recognition as PWD. Here, percentage of disability is much more and
on higher side. Therefore, petitioner has been rightly denied
treatment as PWD.
12] He submits that respondents are bound by Medical Council
of India Regulations and in absence of challenge thereto, the action of
respondents cannot be faulted with. The Competent Authority has on
1.8.2017 worked out disability of 80%. Petitioner on her own then
again got it verified and on 3.8.2017, same percentage has again
been determined. Learned A.G.P. stresses that there are no
allegations of any bias or malpractices against any Medical Board and
no challenge to determination of extent of disability.
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13] He argues that in chart prepared and published after
7.8.2017, against name of petitioner at serial no. 23 because of this
percentage of disability, she is found not eligible for admission in
PWD category. However, that does not mean that she could not have
been considered in general category and hence, that fact has been
clarified only in said list which points out status of persons with
disability. According to him, that does not mean that person with 80%
locomotor disability can be admitted in general category and said
decision could have been taken at appropriate juncture.
14] He is placing reliance upon the Division Bench judgment of
this Court in Writ Petition No. 9556/16 (Rutuja Dattatraya Raut .vs.
State of Maharashtra & others) dated 21.9.2016 delivered at
Bombay.
15] He has also submitted that though upon instructions some
statements on facts have been made before this Court for the first
time, those facts pertaining to electrocution or then surgery in 2011
are not pleaded in Writ Petition and, therefore, respondents are not in
a position to deal with those facts. He, therefore, requests Court to
ignore said contentions.
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16] With the assistance of respective Counsel, we have
perused papers. Stipulation of percentage of disability between 50%
to 70%, validity thereof or then determination of percentage of
disability in case of petitioner is not in dispute. The learned A.G.P.
has attempted to urge that in 2011 disability was worked out at 60%
temporarily and on 14.3.2012 it was worked out at 70%. In 2017 it
has been worked out at 80%. He, therefore, urged that extent of
disability appears to be increasing. However, we find the contention
erroneous. Except for amputation above knee made in 2011, no
other disability is pointed out by respondents. In present facts, we,
therefore, cannot accept the contention that disability has been
increasing or is increasing with age. Medical experts have not
certified anything like this.
17] Perusal of Division Bench judgment dated 21.9.2016 in
Writ Petition No. 9556/16 shows that petitioner there was suffering
from congenital disorder in her lower limbs on account of Cerebral
Palsy and that disability was about 68%. Committee constituted by
Directorate of Medical Education & Research (DMER) certified the
disability to be 76%. These facts are looked into and requirement that
the range must be between 40 to 70% has also been considered. In
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paragraph 13, Division Bench has found that the disability of that
petitioner could not have been reduced and candidate with disability
above 70% cannot be given benefit of reserved quota. Opinion of
experts that no external or artificial assistance by way of prosthesis or
stint would reduce the percentage of disability of petitioner has also
weighed with Division Bench. Hence, that Writ Petition was rejected.
18] However, in paragraph 4 of this judgment dated 21.9.2016,
the judgment of Division Bench of High Court dated 25.6.2013 in Writ
Petition No. 1532/13 (Dr. Nazreen Sartaj Ansari .vs. Union of India
& others) decision of Gujarat High Court in the case of Dr. Deval R.
Mehta .vs. Union of India & others reported at AIR 2011 Gujarat
33 are looked into. The Division Bench points out that said Division
Bench took note of movements of petitioner in Court and then
directed respondents to consider petitioner's case for admission to
post graduate medical course in M.D. (Medicine) or in non-surgical
branch under the Physically Handicapped category. Before Hon'ble
Apex Court in case of Dr. Deval R. Mehta (supra) candidate had
suffered head injury and had right sided hemiparesis at level C4-C5 of
the vertebrae. He being medical practitioner having MBBS degree,
was allowed to complete the MBBS course and was, therefore, held
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not ineligible for purposes of admission to post-graduate medical
course.
19] In Writ Petition No. 5900/11 the petitioner was suffering
from locomotor disability and was seeking admission to First Year
Health Science course after clearing MH-CET-2011. The said
petitioner had lost her both legs in railway accident on 7.10.2008.
Before High Court, she contended that with prosthesis she was able
to walk alone and she was also travelling in local trains. Judgment, in
paragraph 5 shows how the Special Medical Board arrived at
percentage of disability at 88.33%. We need not go into all those
technical aspects. Ultimately in paragraph 11, while issuing Rule, by
interim order this Court directed said petitioner (Shaikh Roshan
Jahan) to be treated as not having physical disability in excess of
70%. Thus, disability assessed at 88.33% has been brought down to
70%. This direction is acquiesced into and that petitioner has
completed MBBS course.
20] All judgments mentioned supra, therefore, attempt to
correlate physical disability with functional disability. In present
matter, the petitioner has been remaining present on dates of hearing
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and she is able to walk without any problem of her own without any
prosthesis or stint and does not appear to suffer from any discomfort
at least to this Court. However, this does not mean that we are
ignoring determination of percentage of disability of 80% on 1.8.2017
by competent experts.
21] Said determination and percentage, however, does not
appear to have any bearing on learning for which petitioner aspires.
Person with said/such disability can very well become an Advocate or
then occupy a post as a Clerk or Teacher or any other similar post
and perform office duties. With prosthesis or artificial limb, such
person may also undertake some field duties. We, therefore, find no
correlation between amputation above knee and the medical
education. It needs to be noted that if percentage of disability in case
of lower limb is on lower side, i.e. 70% or below, the student can be
treated as PWD. However, if it is more than 70%, though disability
exists, technically it is not recognized by law, and hence, the student
like the petitioner is not entitled to be treated as PWD. The object of
rehabilitation of PWD is looked into by this Court in judgment dated
5.8.2011 in Writ Petition No. 5900/11 (supra). The said object needs
to be kept in mind while appreciating this treatment to PWD. The
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welfare measure, at least in present case necessitates that extent of
disability above 70% must disqualify a student for a particular course.
In other words, such disability above 70%, therefore, must have
adverse impact on functions to be discharged or student's ability to
learn. If it does not have such effect, a more disabled student like the
petitioner cannot be treated as a general/normal student.
Respondents have not pointed out any regulation or provision which
disqualifies any disabled candidate or a more disabled candidate from
consideration altogether. No distinction, therefore, can be made in
present facts between a student with 50% to 70% disability and with
80% disability.
22] The respondents have rightly on 7.8.2017 found petitioner
disqualified for admission in PWD category. However, they have also
simultaneously held that she is eligible for admission in general
category. The list is having heading "Status of persons with disability
who have appeared for Special Medical Board and filled preference
form". Thus, while preparing said document, status of petitioner as
PWD was known and looking to percentage of disability, she was
declared not eligible as PWD. However, as said disability has got no
bearing on medical education, she has been found fit for admission in
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general category. Even before this Court, it is not pointed out why a
Doctor should have both legs normal, i.e. fully functional.
23] Thus, we have got a person with physical disability, who on
account of technical stipulations is being denied admission since
percentage of her disability is 80%. This percentage of disability at
80% has got no bearing on her learning capacity and thereafter its
practical use to administer health aid to patients. In this situation, we
find that petitioner could not have been denied treatment as PWD
only because in present matter percentage of locomotor disability of
lower limb exceeds 70%.
24] However, facts like electrocution and, therefore, acquiring
of disability at a later stage in life are not brought on record by the
petitioner. The respondents, therefore, are not in a position to meet
these facts. If the disability has got origin somewhere else, its
relevance also may require due evaluation.
25] The respondents, therefore, were duty bound to give
petitioner admission in MBBS course. Though we do not find the
respondents at fault in not filling in a seat provisionally, a seat to
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accommodate petitioner is presently not available. MCI needs to be
approached and if MCI permits, a seat can be provided to her. When
administration prescribed 75 seats for PWD., only 12 could be filled
in.
26] We are, therefore, inclined to grant petitioner opportunity to
produce treatment papers and discharge card, etc. before the
respondent no. 3 within 7 days from today. If such papers are
produced, the respondent no.3 shall arrange for its verification and
then find out correctness in assertion that amputation is on account of
electrocution. If it is on account of electrocution, we direct the
respondents to provide admission to petitioner in MBBS course
against supernumerary post, if it is sanctioned by MCI.
27] The exercise to ascertain correctness of story of
electrocution shall be completed within two weeks after the papers
are received by respondent no.3.
28] In the meanwhile, in order to save time, the respondents
shall also write to Medical Council of India with copy of this judgment
for permission to create a supernumerary post to accommodate the
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petitioner. If such leave is granted by MCI, the petitioner shall then be
admitted to first year MBBS course.
29] With these directions, we allow the Writ Petition and
dispose it of. Rule is made absolute accordingly. No costs.
C.C. is expedited.
JUDGE JUDGE.
J.
