Calcutta High Court (Appellete Side)

Synthia Das vs Union Of India & Ors on 3 November, 2022

13   03.11.2022
Sc   Ct. no.22
                                           WPA 23259 OF 2022
                                                   with
                                         I.A. No. CAN 1 OF 2022

                                                 --------------

Synthia Das Vs.

Union of India & Ors.

Mr. Biswaroop Bhattacharya Mr. Vivekananda Bose Mr. Avik Ghatak Mr. Soham De Dhara Mr. Ratikanta Pal.

....For Petitioner Mr. Asok Kumar Chakrabarty Mr. Indrajeet Dasgupta.

....For Respondent Nos. 1 to 5/UOI Mr. Himadri Sikhar Chakraborty Mr. Hara Krishna Halder.

....For Respondent Nos. 7, 8 & 9/State Mr. Indranil Roy Mr. Sunit Kr. Roy.

....For Respondent Nos. 10 & 11 /National Medical Commission

Affidavit-of-service filed in Court today, is taken on

record. Supplementary affidavit, affirmed on October 28,

2022 filed on behalf of the petitioner, is also taken on

record.

Mr. Vivekananda Bose led by Mr. Biswaroop

Bhattacharya, learned counsel appear on behalf of the

petitioner.

Mr. Ashok Kumar Chakrabarty, learned senior

counsel and learned Additional Solicitor General

represents the respondent nos. 1 to 5.

Mr. Himadri Sikhar Chakraborty, learned counsel

represents the respondent nos. 7, 8 and 9.

Mr. Indranil Roy, learned counsel appears on behalf

of the respondent no.10 and 11.

The writ petitioner is an intending candidate to

pursue her MBBS course. She appeared in the National

Eligibility cum Entrance Test (NEET - UG), 2022

Examination (for short NEET).

The petitioner intends to avail of the specified

Quota for the Persons with Disabilities. The petitioner

claims that congenitally she has been suffering

disabilities which is within the permitted range as per the

guidelines framed by the then Medical Council of India,

presently, the respondent no.10. The State policy

framers, on the basis of a comprehensive report regarding

the guidelines of admission of persons with specified

disabilities in the medical courses, Annexure-P5 to the

writ petition, framed the relevant guidelines which were

published in the Gazette of India on February 5, 2019,

Annexure-P7 to the writ petition. Subsequently the said

guidelines were amended and published in the official

gazette on May 14, 2019, Annexure-P8 to the writ

petition.

The parties appearing before this Court agreed and

were ad idem that the said guidelines, Annexure-P8 to

the writ petition, is prevailing and governing the case of

the petitioner.

The relevant provisions as provided under Clause 4

of the said prevailing guidelines, are quoted below :

"4. The term 'Persons with Disabilities' (PwD) is to be used

instead of the term 'Physically Handicapped' (PH)

Sl. Disability Type Type of Specified Disability Range Disabilities Disabilities Eligible for Eligible for Not Eligible Medical Medical for Medical Course, Course, Course Not Eligible Eligible for for PwD PwD Quota Quota

1. Physical A. Locomotor a. Leprosy Less than 40-80% More than Disability Disability. cured 40% disability 80% person* disability Including b. Cerebral Specified Palsy** Disabilities (a c. Dwarfism to f). d. Muscular e. Acid attack victims f. Others*** such as Amputation, Poliomyelitis, etc.

* Attention should be paid to loss of sensations in fingers and hands, amputation, as well as involvement of eyes and corresponding recommendations be looked at. ** Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations be looked at.

*** Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course B.Visual a.Blindness Less than Equal to or Impairment (*) 40% More than b. Low vision disability (i.e. 40% Category '0 Disability (10%)', 'I (i.e.Category (20%)' & 'II III and (30%)' above) C.Hearing a.Deaf Less than Equal to or Impairment @ 40% more than b.Hard of Disability 40% hearing Disability (*) Persons with Visual impairment/visual disability of more than 40% may be made eligible to pursue Graduate Medical Education and may be given reservation, subject to the condition that the visual disability is brought to a level of less than the benchmark of 40% with advanced low vision aids such as telescopes/magnifier ets. @ Persons with hearing disability of more than 40% may be made eligible to pursue Graduate Medical Education and may be given reservation, subject to the condition that the hearing disability is brought to a level of less than the benchmark of 40% with the aid of assistive devices.

In addition to this, the individual should have a speech discrimination score of more than 60% D.Speech & Organic/neu Less than Equal to or language rological 40% more than disabilitie$ causes Disability 40% Disability $ It is proposed that for admission to MBBS course the Speech Intelligibility Affected (SIA) score shall not exceed 3 (Which will correspond to less than 40%) to be eligible to pursue the MBBS course. The individuals beyond this score will not be eligible for admission to the MBBS course.

Persons with an Aphasia Quotient (AQ) upto 40% may be eligible to pursue MBBS course but beyond that they will neither be eligible to pursue the MBBS course nor will they have any reservation.

2. Intellectual a.Specific # currently there is no Quantification scale disability learning available to assess the severity of SpLD, disabilities therefore the cut-off of 40% is arbitrary and (Perceptual more evidence is needed. disabilities, Dyslexia, Dyscalculia, Dyspraxia & Develpmenta l aphasia)#

Less than Equal to or More than 40% more than 80% or Disability 40% severe disability - nature or But selection significant will be based cognitive/int on the ellectual learning disability competency evaluated with the help of the remediation/ assisted technology/a ids/infrastru ctural changes by the Expert Panel

The aforesaid provision of the said guidelines made

a candidate eligible with certain physical disabilities and

limitations to pursue his/her admission in the medical

course.

The relevant Certificate of Disability for NEET

admission was issued in favour of the petitioner dated

October 6, 2022, Annexure-P3 to the writ petition. The

relevant portion from the said Certificate of Disability is

quoted below :

"Conclusion: Based on quantification of Disability The Candidate is not eligible to pursue medical course (as per NMC norms).

The Disability Certification Board certifies that the candidate is Not Eligible for admission in Medical/Dental courses and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification.

If 'Not Eligible' the reason for the same is : Congenital Absence of fingers of right hand. Both hands not intact. Not eligible for Medical course as per NMC."

The said certificate shows that the petitioner was

with certain physical disability, the 'Type of Disability'

was mentioned as "Locomotor Disability". The

'Specified Disability' was mentioned as "Others" and

the 'Disability %' was mentioned as "45".

Mr. Vivekananda Bose, learned counsel appearing

for the writ petitioner submitted that from a reading of

the said Certificate of Disability it would be clearly

demonstrated that it was a result of a mechanical

approach on the part of the experts of doctors who issued

the said certificate by observing that "Both hands not

intact". Placing reliance upon various clauses and

provisions of the said comprehensive report regarding the

guidelines for admission of persons with specified

disabilities in the medical courses, Annexure-P5 to the

writ petition, he strenuously argued that the intention of

the policy framers was to promote the physically disabled

candidates for pursuing medical courses and as such

upon careful consideration of every factor by the body of

medical experts, the said comprehensive report was

prepared mentioning the extent of disabilities with which

a disabled candidate would be eligible to pursue his/her

medical course. He submitted that on the basis of the

said comprehensive report, the relevant guidelines were

framed by the policy framers of the State, Annexure-P8

to the writ petition.

He then submitted that to ascertain the case of the

petitioner as to her eligibility as a disabled candidate to

pursue the medical course, the relevant provisions laid

down in the said guidelines should be meaningfully taken

into consideration and not in a mechanical manner. If a

meaningful consideration is given, then the petitioner

with 45% disability and with the nature of disability on

her upper limb ought to have been considered for

admission under the physically disabled category in

the medical course.

Mr. Bose, learned counsel then submitted that a

meaningful reading of the provisions mentioned in the

said guidelines would show that the relevant Certificate

of Disability, Annexure-P3 to the writ petition was

prepared mechanically and without any application of

mind.

The writ petitioner in the above facts and

circumstances filed the instant writ petition with the

following prayers:

"a. Leave be granted to the petitioners dispensing compliance with the formalities contemplated under Rule 26 of the Rule framed by this Hon'ble Court relating to applications under Article 226 of the constitution of India;

b. A writ of and/or in the nature of Mandamus do issue directing the respondent authorities, more specifically the respondents no.12 and 13 to cancel/rescind/withdraw/set aside the Certificate dated 6th October, 2022 (being AnnexureP/3 herein) insofar as it declares the petitioner as not eligible for admission in medical/dental course and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification without any delay whatsoever';

c. A writ of and/or in the nature of Mandamus do issue directing the respondents, more specifically the respondents no. 5, 9, 12 and 13 not to act in terms of and/or to take any step and/or further step on the basis of the Certificate dated 6th October, 2022 (being

Annexure P/3 herein) insofar as it declares the petitioner as not eligible for admission in medical/dental course and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification;

d. A writ of or in the nature of Mandamus do issue directing the respondents, more specifically the respondent no.13 and/or any other such authority as this Hon'ble Court may deem fit and proper to appropriately examine the petitioner and issue appropriate certificate in terms of the Notification dated 13th May, 2019 (being Annexure P/8 herein) read with the report dated 5th June, 2018 (being Annexure P/5 herein) without any delay whatsoever;

e. A writ of or in the nature of Mandamus do issue directing the respondents, more specifically the respondent authorities to allow the petitioner to participate in the counselling for admission in medical/dental courses for the session 2022- 2023 and further to admit the petitioner in such course in an institute of her choice;

f. A writ of or in the nature of Certiorari commanding the respondent authorities to transmit to this Hon'ble Court all documents/records/papers, pertaining to the instant case and forming the basis of the impugned certificate dated 6th October 2022 being Annexure P/3 herein in so far as the same declares the petitioner not eligible for admission in medical/dental course and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification so that the same may be certified, and on being so certified, quash the same so that conscionable justice is rendered;

g. Rule NISI in terms of prayer (b) to (f) above;

h. An interim order do issue directing the respondents, more specifically the respondent no.5 and 9 to allow the petitioner to participate in the counselling for enrolment in medical/dental course for the session 2022- 2023 during the pendency of the instant writ petition;

i. In the alternative, an interim order do issue directing the respondent nos. 5 and 9 to keep vacant one seat in the medical/dental

course pertaining to session 2022-2023 during the pendency of this writ petition;

j. Ad-interim orders in terms of prayers (h) and (I) above;

k. Such other and/or further order/orders and/or direction/directions as your Lordships may deem fit and proper."

Upon the said writ petition being moved an interim

order was passed by a coordinate Bench on October 14,

2022 directing as an interim measure that the

respondent authorities, particularly the respondent nos.

5 and 9 shall keep one seat vacant in the medical course

for the relevant session of 2022-23 during pendency of

the writ petition. Subsequently, the writ petition was

again moved before the Vacation Bench and an order was

passed by a coordinate Bench on October 21, 2022 with

a direction to allow the petitioner to participate in the

procedure those were proposed to be held on October 28,

2022 pursuant to the tentative schedule for NEET UG

2022 dated October 18, 2022 and the petitioner was

allowed to submit her registration and online payment of

fees for the same and it was specifically directed that

such order would not create any right or equity in her

favour.

Mr. Vivekananda Bose, learned counsel in support

of his contention that the case of the petitioner may be

sent for further verification by the Medical Board had

relied upon a decision of the Hon'ble High Court of

Judicature at Bombay Bench at Aurangabad, In the

matter of : Writ Petition No.10661 of 2022, Ajinkya

Ankush Budle -vs.- The Government of India through

Director General of Health and Others.

The decision relied upon on behalf of the petitioner

in the matter of Ajinkya Ankush Budle (supra) was an

interim order. There also a specific direction was made

by the Court that no equity would be created in favour of

the writ petitioner. Inasmuch as the writ petition there,

was also fixed for final hearing and the fate is not known

to this Court.

Since this writ petition is being taken up for final

disposal by consent of the parties, the interim order

passed in the matter of Ajinkya Ankush Budle (supra)

would not have any binding effect before this Court.

The learned Additional Solicitor General appearing

for the respondent nos. 1 to 5 submitted that an

interlocutory application has been filed being CAN 1 of

2022 which has also been taken up for hearing today

seeking modification of the order dated October 21, 2022.

The contention of the writ petitioner was in the said

application that she was not allowed to participate in the

admission process under the Persons with Disabilities

Category but was asked to compete the admission

process under the "General Category" despite she being a

person with disabilities, as stated above. However, the

writ petitioner in support of his contention relied upon a

letter dated October 26, 2022, Annexure-P13 to the said

interlocutory application.

The learned Additional Solicitor General submitted

that it was a case made out from the Bar and no such

communication has ever been disclosed before this Court

neither any such communication was sought to be

brought on record which was issued by the admission

authority or the Medical Council in support of the

contention of the writ petitioner.

The learned Additional Solicitor General further

submitted that the writ petition is devoid of any merit

and unnecessarily under the said interim orders one

valuable seat is kept set apart. The writ petition may be

dismissed at this stage. It was also submitted that the

petitioner had also not registered herself with the

Central Medical Counselling Committee.

Mr. Indranil Roy, learned counsel appearing for the

respondent nos. 10 and 11 heavily relied upon the

prevailing guidelines being Anneure-P8 to the writ

petition and drew attention of its various provisions

before this Court. Relying upon such provisions he

submitted that a candidate suffering from some physical

disabilities like the petitioner can definitely pursue

his/her medical course subject to he/she comes within

the scope and ambit of such a candidate specified under

the said guidelines. Relying on Clause 4 and the

schedule set out thereunder he submitted that a

candidate Both hands are intact, with intact

sensations, sufficient strength and range of vision

are essential to be considered eligible for medical

course.

Referring to the said Certificate of Disabilities,

Annexure-P3 to the writ petition he submitted that the

petitioner's both hands are not intact as was observed

and found by the appropriate medical experts who had

physically verified the petitioner and then issued the said

Certificate.

Relying upon the said document, Annexure-P3 to

the writ petition read with the prevailing guidelines as

stated above, Mr. Roy submitted that when there is a

specific report prepared by the relevant experts on the

subject, the Court cannot re-assess the same. In

support, he relied upon a judgment of the Hon'ble

Supreme Court in the matter of Vidhi Himmat Katariya

& Ors. -vs.- State of Gujarat and Ors., reported at

(2019) 10 SCC 20.

Mr. Roy concluded his submissions with a specific

prayer for dismissal of this writ petition and submitted

that the existence of the said interim order in such a writ

petition which is otherwise wholly devoid of any merit

creates prejudice to the genuine and eligible candidates

who wish to pursue their medical course and are covered

under the said prevailing guidelines with some physical

disabilities.

After considering the rival contentions of the

parties and on perusal of materials on record, this Court

is of the firm opinion that the said guidelines, Annexure-

P8 to the writ petition will prevail on the issue. The said

guidelines have not been challenged in any manner by

the writ petitioner. The writ petitioner had challenged

the said Certificate of Disabilities, Annexure-P3 to the

writ petition. On a perusal of the averments made in the

writ petition and after hearing the parties at length

without relying upon any further document beyond the

record of this proceeding, it also appears to this Court

that, the challenge thrown to the said Certificate of

Disabilities is subjective in nature which was prepared

by the concerned medical experts upon physical

verification of the petitioner. On a conjoint reading of the

said opinion of the experts appearing from the said

Certificate of Disability and the provisions laid down in

the prevailing guidelines for admission, it appears to this

Court that there was no element of malice attached while

issuing the said Certificate of Disability by the medical

experts. It is also the settled provision of law that an

opinion of an expert on the subject cannot be reassessed

by a writ court unless prima facie and ex facie there is an

element of malice attached with it. In the case in hand

such is not the case of the writ petitioner. The writ court

cannot sit on appeal for reassessment of an expert's

opinion. Inasmuch as, the finding in the said Certificate

of Disability of the medical experts were in sync with the

said prevailing guidelines as quoted above. Thus, this

Court is of the firm opinion that, there is no scope for any

interference by this Court with the finding of the medical

experts appearing in the said Certificate of Disability of

the petitioner.

In the matter of Vidhi Himmat Katariya (supra),

the Hon'bel Supreme Court has observed as under:

"8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix "H" - "Both Hands intact", with intact sensation, sufficient strength and range of motion". Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts - in the present case, the medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides.

9. In view of the above and for the reasons stated above, the present petitioners are not entitled to the reliefs as prayed. Hence, all the writ petitions filed under Article 32 of the Constitution of India deserve to be dismissed and are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs."

The identical provision of the guidelines was under

consideration before the Hon'ble Supreme Court in the

matter of Vidhi Himmat Katariya (supra).

Considering the urgency involved in this writ

petition as submitted by the parties, the writ petition

along with its interlocutory application is taken up for

final disposal today and is dealt with accordingly.

In view of the foregoing discussions and reasons

this writ petition WPA 23259 of 2022 with its connected

application, I.A. No. CAN 1 of 2022 both stand

dismissed, without any order as to costs.

It is needless to mention that the interim orders