Bombay High Court
Suyash Suryakant Patil vs National Medical Commission Thr. Its ... on 21 February, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:8618-DB
RAMESHWAR
LAXMAN
DILWALE
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
Digitally signed IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by RAMESHWAR
LAXMAN CIVIL APPELLATE JURISDICTION
DILWALE
Date: 2025.02.24
17:42:54 +0530
WRIT PETITION NO.13072 OF 2024
Suyash Suryakant Patil }
Age:18 yrs, Occ: Student }
S/o Suryakant }
R/o Shivaji Peth, A/P-Kameri }
Taluka-Walwa, Kameri, }
Dist. Sangli, Maharashtra-415403 }.. Petitioner
Versus
1. National Medical Commission }
Through Its Secretary }
Pocket-14, Sector-8, }
Dwarka Phase-1, Delhi-77 }
2. JJ Group of Hospitals }
JJ Marg, Nagpada, }
Mumbai Central, Off Jejeebhoy Road, }
Mumbai-400008. }
3. Medical Counselling Committee }
Through Its Adg (Me) & Member Secretary }
Directorate General of Health Services }
Room No.355-A, Nirman Bhawan, }
New Delhi-110011. }
4. Ministry of Health & Family Welfare }
Through Its Secretary }
Room No.156-A, }
Nirman Bhawan, New Delhi-110011. }
5. Government Medical College, }
Jalna Through its Dean }
Opposite Sushila Devi Lawns }
Ambad Mantha Road, Jalna }
Maharashtra-431213 }
Email:[email protected] }.. Respondents
...
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3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
Mr. Rahul Bajaj (through VC) with Mr. Taha Bin Tasneem, Mr.
Shantanu Derhgawan, Advocates for the petitioner.
Mr. Ganesh K. Gole with Mr. Kunjan Makwana, Advocates for the
respondent no.1.
Mrs. Neha S. Bhide, Government Pleader with Mr. S. B. Kalel,
Assistant Government Pleader for the respondent nos.2 and 5.
...
CORAM : A.S. CHANDURKAR &
M.M. SATHAYE, JJ
DATE : 21st FEBRUARY 2025.
JUDGEMENT :
(PER :A. S. CHANDURKAR, J)
1. Rule. Rule made returnable forthwith and heard learned
counsel for the parties.
2. The petitioner who suffers from multiple disabilities to the
extent of 58% and speech disability exceeding 40% as per
Certificate of Disability dated 6th August 2024 has approached this
Court seeking a declaration as regards his eligibility to pursue the
MBBS course. The petitioner appeared in the National Eligibility
cum Entrance Test, Under Graduate-NEET UG, 2024 that was
held on 23rd June 2024. A candidate suffering from a speech and
hearing disability exceeding 40% is not considered eligible to
pursue the MBBS course as per the Gazette Notification dated 5 th
February 2019 published by the Medical Council of India as
amended on 13th May 2019. The petitioner on 15th August 2024
made a representation to the first respondent- the National
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Medical Commission (for short, 'NMC') stating therein that the
benchmark disability of 40% and below for pursuing medicine was
arbitrary and without any scientific basis. The petitioner made a
request to re-consider his disqualification to enable him to pursue
the MBBS course. In the absence of any response to the same, the
petitioner has filed this writ petition.
3. On 18th September 2024, after hearing the learned counsel
for the petitioner a direction was issued to the NMC as well as the
fourth respondent- the Ministry of Health and Family Welfare
through its Secretary to consider in the petitioner's representation
dated 15th August 2024 and file an affidavit in that regard. On 9 th
October 2024, the petitioner was examined by a three Member
Committee constituted at the Grant Medical College and Sir J. J.
Group of Hospitals, Mumbai being an authorized center for
evaluation and issuance of disability certificates. It was stated that
the petitioner was examined on 5th August 2024 and as per the
Notification dated 5th February 2019 as well as the NEET UG-2024
Information Bulletin dated 15th February 2019 as the speech and
language disability of the petitioner was more than 40%, the
Committee was of the opinion that the petitioner was not eligible
to pursue the medical course.
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
On 17th October 2024, in the light of the judgment of the
Supreme Court in Omkar Ramchandra Gond Vs. the Union of India
and others, 2024 INSC 775, a direction was issued for examining
the petitioner's functional ability by having the petitioner
examined at the All India Institute of Medical Sciences, Nagpur.
An interim direction was also issued by which the petitioner was
permitted to be admitted at the first year MBBS course, 2024-25
in the PwD quota on a provisional basis. His admission was made
dependent upon the determination of his functional ability as well
as the outcome of the writ petition. The petitioner was accordingly
examined at AIIMS, Nagpur by the NEET Disability Certification
Medical Board (for short, 'the DCMB'). On 23 rd October 2024, the
DCMB issued a certificate opining that the petitioner was eligible
to pursue medical education but was not eligible for PwD
reservation.
4. On the strength of the interim order, the petitioner sought
for being admitted at the fifth respondent-Government Medical
College, Jalna on 30th October 2024. However, in view of the
certificate dated 23/10/2024 issued by the DCMB, the petitioner
was held not eligible for PwD reservation. As a result, his
admission at the Government Medical College, Jalna came to be
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cancelled. By amending the writ petition, the petitioner has sought
restoration of his admission with a declaration that the petitioner
was also eligible to claim PwD reservation. In the aforesaid
backdrop, the learned counsel for the parties have been heard.
5. Mr. Rahul Bajaj, learned counsel appearing for the petitioner
referred to the decisions of the Supreme Court in Omkar
Ramchandra Gond (supra) and Om Rathod Vs. The Director General
of Health Services and others, 2024 INSC 836 and submitted that
notwithstanding the assessment of disability of the petitioner at
58% and speech disability exceeding 40%, the petitioner was
referred initially to the Sir J.J. Group of Hospitals, Mumbai for
being examined by a three Member Committee. The said
Committee opined that the petitioner was not eligible to pursue
the medical course. The petitioner had been thereafter referred to
the NEET DCMB at AIIMS Nagpur for assessing his functional
competency. The DCMB found the petitioner eligible to pursue
medical education but it further observed that the petitioner was
not eligible for PwD reservation on the basis of its quantification.
According to the learned counsel, the DCMB was merely required
to assess the petitioner's functional competency and not quantify
his disability. After assessing the petitioner's hearing, speech and
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
language disability, it had opined that the petitioner was eligible to
pursue the medical course. On that basis, the petitioner ought to
be restored his admission at the Government Medical College,
Jalna which was denied on 31st October 2024. For the purposes of
quantification of the petitioner's disability, the certificate dated 6 th
August 2024 was sufficient. As regards the petitioner's functional
competency, the certificate dated 23rd October 2024 issued by the
DCMB ought to be taken into consideration. It was thus submitted
that though the petitioner was found eligible to pursue the
medical course by the DCMB, his admission had been wrongly
cancelled. It was thus prayed that the petitioner's admission be
restored at Government Medical College, Jalna and if it was found
that there was no vacant seat now available, the relief be moulded
to enable the petitioner to pursue the MBBS course.
6. Ms. Neha S. Bhide, learned Government Pleader appearing
for the second respondent- Sir J. J. Group of Hospitals relied
upon the affidavit in reply filed by the Professor and Head of the
Department (ENT) dated 15th October 2024 and opposed the writ
petition. It was submitted that initially the petitioner was issued a
certificate of disability on 6th August 2024 which indicated
multiple disability at 58% and speech disability exceeding 40%.
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
Further verification of the petitioner's functional ability was
undertaken on 5th August 2024 and the Board constituted by the
second respondent had opined that as the petitioner's speech and
language disability was more than 40%, he was not eligible to
pursue the medical course. In view of the interim order passed in
the present proceedings, the DCMB again examined the petitioner
on 23rd October 2024 and as per the opinion expressed by it, the
petitioner was not eligible to seek PwD reservation, though he was
eligible to pursue the medical course. Since this assessment was
undertaken pursuant to the directions issued by the Court, the
opinion as expressed was binding on all parties.
Reliance was also placed on the affidavit in reply filed on
behalf of the Assistant Professor in Forensic Medicine,
Government Medical College, Jalna dated 7 th February 2025. It
was submitted that when the petitioner had approached the said
college on 30th October 2024 for seeking admission to the MBBS
course, he did not possess the requisite disability certificate. Since
the petitioner's functional ability was determined by the DCMB
which stated that he was not entitled for PwD reservation, his
admission came to be cancelled. This was done after giving due
opportunity to the petitioner by granting him time to produce the
relevant documents till 31st October 2024. Since it was opined that
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the petitioner was not eligible for the benefit of PwD reservation,
his admission was rightly cancelled.
7. Mr. Ganesh K. Gole, learned counsel appearing on behalf of
the first respondent-NMC referred to various communications
issued on behalf of the NMC in the light of the orders passed by
Supreme Court in Writ Petition (C)No.856 of 2023 Bambhaniya
Sagar Vasharambhai Vs. Union of India and others in the matter of
providing suggestions to facilitate grant of benefit to candidates
suffering from physical disability. He also invited attention to the
guidelines regarding admissions of students with specified
disabilities under the Rights of Persons with Disabilities Act,
2016. According to him, the disability board having certified the
petitioner to be not eligible for PwD reservation, no relief in that
regard could be granted to him.
8. We have heard the learned counsel for the parties at length
and with their assistance we have also perused the documents on
record. The petitioner has been issued a Certificate of Disability by
the Sir J. J. Group of Hospitals which is the Designated Disability
Certification Centre. As per this certificate dated 6 th August 2024,
the petitioner suffers from multiple disability to the extent of 58%
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
and speech disability exceeding 40%. Relying upon the decision of
the Supreme Court in Omkar Ramchandra Gond (supra), a
direction was issued on 17th October 2024 by which the Disability
Board was requested to examine the petitioner's functional ability
and opine as to whether the petitioner would be in a position to
pursue the medical course. In accordance therewith, the petitioner
was examined by the NEET DCMB at AIIMS, Nagpur. It recorded a
finding that after assessing the petitioner's functional ability, he
was found eligible to pursue medical education. It however opined
that the petitioner was not eligible for PwD reservation. Thus the
only contentious issue that now remains to be adjudicated is the
entitlement of the petitioner to admission at the MBBS course by
seeking benefit of PwD reservation.
9. As per the Information Brochure governing admissions to
NEET-UG 2024, a candidate having less than 40% hearing
impairment or speech and language disability is eligible for being
admitted to the medical course but is not eligible to seek benefit of
PwD reservation. In case such disability is equal to or exceeds
40%, then such candidate is not eligible to pursue the medical
course. The Supreme Court in Omkar Ramchandra Gond (supra)
noticed this very provision. Therein the appellant was certified to
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have 44%/45% permanent disability as per the certificate issued
to him. As per Appendix H-1 of the Admission Brochure, a
candidate with less than 40% disability was not eligible for PwD
reservation though such candidate could pursue the medical
course. A candidate with 40% disability or more was however not
eligible to pursue the medical course. While considering the
aforesaid, it was observed that merely because the quantification
of disability of speech and language was 40% or above, a
candidate would not forfeit his right to stake a claim for
admission to the course of his choice. It was thus held that
quantification of disability per se would not disentitle a candidate
with benchmark disability from being considered for admission to
an education institution. The candidate would be eligible if the
DCMB opines that notwithstanding the quantified disability, the
candidate can pursue the course in question. The DCMB that
assesses the candidate should positively record whether the
disability of the candidate would or would not come in the way of
the candidate pursuing the course in question. The observations
in paragraphs 20, 46 to 48 are relevant for the present purpose.
The same are as under:-
20. The Appendix H-I extracted above provides a peculiar
scenario. While people with less than 40% disability are
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not eligible for PwD quota, though they can pursue the
Medical Course, persons with equal to or more than 40%
disability are not eligible for the medical course. Read
literally, while persons with speech and language
disability with less than 40% are not entitled to the
reserved quota, if they have 40% or more disability they
are rendered ineligible for the medical course. The column
under the guidelines "Eligible for Medical Course, Eligible
for PwD quota" is left blank reinforcing the absurd
position that under this category no one is rendered
eligible for the 5% reserved quota. Certainly that cannot
be the legal position.
46. Disabilities Assessment Boards are not
monotonous automations to just look at the quantified
benchmark disability as set out in the certificate of
disability and cast aside the candidate. Such an
approach would be antithetical to Article 14 and
Article 21 and all canons of justice, equity and good
conscience. It will also defeat the salutary objectives
of the RPwD Act. The Disabilities Assessment Boards
are obliged to examine the further question as to
whether the candidate in the opinion of the experts in
the field is eligible to pursue the course or in other
words, whether the disability will or will not come in
the way of the candidate pursuing the course in
question.
47. The concept of "inclusive education" has been
elucidated in Avni Prakash v. National Testing
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
Agency, (NTA) and others (2023) 2 SCC 286. This
Court held as under.
"40. Education plays a key role in social
and economic inclusion and effective
participation in society. Inclusive
education is indispensable for ensuring
universal and non-discriminatory access
to education. The Convention on Rights
of Persons with Disabilities recognises
that inclusive education systems must be
put in place for a meaningful realisation
of the right to education for PwD. Thus, a
right to education is essentially a right to
inclusive education. In India, the RPwD
Act, 2016 provides statutory backing to
the principle of inclusive education.
Section 2(m) defines "inclusive education"
as:
"2. (m) "inclusive education" means a
system of education wherein students
with and without disability learn
together and the system of teaching and
learning is suitably adapted to meet the
learning needs of different types of
students with disabilities;"
48. While interpreting the Regulations and Guidelines,
as provided in Appendix H-1 to the notification dated
13.05.2019, as they stood for the academic year
2024-25, we are constrained, keeping in mind the
salutary object of the RPwD Act and Article 41 of the
Directive Principles of State Policy, to direct that mere
existence of benchmark disability of 40% or above (or
such other prescribed percentages depending on the
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
disability) will not disqualify a candidate from being
eligible for the course applied for. The Disability
Assessment Boards assessing the candidates should
positively record whether the disability of the
candidate will or will not come in the way of the
candidate pursuing the course in question. The
Disability Assessment Boards should state reasons in
the event of the Disability Assessment Board
concluding that candidate is not eligible for pursuing
the course."
(emphasis supplied by us)
10. It is necessary to note that a candidate seeking benefit of
PwD reservation is required to submit certificate of disability. As
referred to above, such certificate dated 6 th August 2024 was
submitted by the petitioner. Since his disability was found to
exceed the benchmark of 40%, he was held to be not eligible to
pursue the medical course. It is for this reason that the petitioner
approached the High Court by filing the present writ petition
seeking a declaration that the NMC be directed to re-consider its
policy of not permitting candidates who suffer from more than
40% disability from pursuing medical courses. In the light of the
law laid down in Omkar Ramchandra Gond (supra), the petitioner's
functional competency was directed to be examined by the expert
body, namely the NEET DCMB. It having opined that the
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petitioner was eligible to pursue the medical education course, as
a corollary, the petitioner is entitled to seek benefit of PwD
reservation in the light of the disability certificate dated 6 th August
2024.
11. It was urged on behalf of the respondents that as the NEET
DCMB had opined that the quantification of petitioner's disability
was below the benchmark of 40%, he was not eligible for PwD
reservation. In this regard, it may be stated that the only direction
issued to the said Board was to assess the petitioner's functional
ability for pursuing the medical course and not to quantify his
disability. The quantification of the petitioner's disability was
already done on 6th August 2024. Accepting that quantification, a
direction had been issued to the DCMB examine the petitioner's
functional competency. No fault was found with the quantification
of the petitioner's disability indicated in the certification dated 6 th
August 2024. At this stage, it would be necessary to refer to
paragraphs 53 and 54 of the decision in Om Rathod (supra), which
read as under:
"55. We have noted above that Disability
Assessment Boards must comply with rule of law
principles by injecting transparency, fairness and
consistency in their approach. The Boards must
further elaborate on the reasons for the outcome of
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their assessment, in particular when they opine
that the candidate is ineligible. The Disability
Assessment Boards must focus on the functional
competence of persons with disabilities and not
merely quantify the disability. The quantification
of disability is a task in need of a purpose within
the human rights based model of disability. The
functional competency approach to assessment for
a medical course is globally recognised. To enable
members of the Assessment Boards in effectively
applying the functional competency test, they must
be adequately trained by professionals and
persons with disabilities or persons who have
worked on disability justice. These trainings must
be with a view to enhance the understanding of
the Board members in assessing persons with
disabilities and must not pathologize or
problematize them.
54. The disability of a person is quantified at
the time of availing a Unique Disability ID Card.
The quantification of disability is moot at the point
of admission to educational courses since the
eligibility for a person to benefit from reservation
may be evaluated using the quantification in the
UDID Card. If a person with disability wants to
have themself re-assessed so as to verify whether
their disability falls within the prescribed
parameters for reservation - they may choose to do
so by updating their UDID Cards. The role of the
Disability Assessment Boards must be tailored
(with a functional competency approach) only for
the course which the candidate seeks to pursue."
(emphasis supplied by us)
Hence, it was not necessary for the DCMB to have again
examined and quantified the disability of the petitioner. Once the
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DCMB found the petitioner eligible to pursue the medical course
notwithstanding his aforesaid disability as quantified, its
assessment of his functional competency ought to govern the
matter. In other words, on the basis of quantification of the
petitioner's disability vide Certificate dated 6 th August 2024
coupled with the assessment of the petitioner's functional
competency to pursue the medical course as opined by the DCMB
on 23rd October 2024, the petitioner would be entitled to pursue
medical education by seeking benefit of PwD reservation.
Accepting the quantification of the petitioner's disability as
undertaken by the DCMB on 23 rd October 2024 would place the
petitioner in a worse position than he was prior to approaching
the Court. His disability was already quantified on 6 th August
2024 by the Disability Board as per the Information Brochure. The
matter was referred to the DCMB by the order dated 17 th October
2024 only to assess the petitioner's functional competency. It is
well settled that a person cannot be placed in a worse position by
coming to Court as held in Pradeep Kumar Vs. Union of India and
others, (2005) 12 SCC 219.
12. Though the petitioner was directed to be admitted at the first
year MBBS course at the Government Medical College, Jalna
3-WP-13072-24 JUDGEMENT.doc Rameshwar Dilwale
pursuant to the interim order 17 th October 2024, for failure on his
part to submit the requisite certificate indicating his physical
disability so as to seek benefit of PwD reservation, his admission
was cancelled on 31st October 2024. Since it is found that the
petitioner is entitled to pursue the medical course with the aid of
PwD reservation, the petitioner's admission is liable to be restored.
It is informed that presently there is no vacant seat available in
the PwD category at the Government Medical College, Jalna.
However considering the facts aforestated, a case has been made
out to grant restitutive relief as held in Manoj Kumar Vs. Union of
India 2024 INSC 126 and restore the petitioner to the position in
which he was prior to denying him admission. Following the
principle of law laid down in S. Krishna Sradha Vs. State of Andhra
Pradesh and others 2017 INSC 1301, a direction is issued to the
Government Medical College, Jalna as well as the NMC to admit
the petitioner at the first year MBBS course in the PwD category
by creating a supernumerary seat.
13. Hence for aforesaid reasons, the following order is passed:-
i) In the light of quantification of petitioner's
multiple disability at 58% and speech disability
exceeding 40% as per Certificate dated 6th August 2024
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coupled with the disability assessment of the
petitioner by the NEET Disability Certification Medical
Board on 23rd October 2024 holding the petitioner
eligible to pursue medical education, it is held that the
petitioner is entitled to pursue medical education and
also seek benefit of PwD reservation.
ii) The action on the part of Government Medical
College, Jalna of cancelling the petitioner's admission
to the first MBBS course, 2024 for failure to produce a
requisite disability certificate is set aside. It is directed
that the petitioner shall be restored his admission to
the first MBBS course, 2024 in the PwD category.
Same be done by creating a supernumerary post.
iii) The Dean, Government Medical College, Jalna
shall take necessary steps so as to enable creation of
this supernumerary seat with the approval of the
National Medical Commission.
iv) Rule is made absolute in aforesaid terms with no
order as to costs.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
