Tina Sharma (Minor) Thorugh Her ... vs Union Of India And Ors.
2018 Latest Caselaw 4406 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 7820/2018
     TINA SHARMA (MINOR) THORUGH HER FATHER
     BHAGWATI PRASAD SHARMA                            ..... Petitioner
                      Through: Mr. Jeetender Gupta, Advocate
                      versus
     UNION OF INDIA AND ORS.                        ..... Respondents
                      Through: Mr. Nikhil Goel, Mr. Gurpreet Hora
                                 & Mr. Ashutosh Ghoole, Advocates
                                 for R-1
                                 Mr. T Singhdev, Ms. Puja Sarkar, Ms.
                                 Michelle Biakthansangi Das, Mr.
                                 Tarun Verma, Mr. Abhijit
                                 Chakravarty & Ms. Amandeep Kaur,
                                 Advocates for R-3
                                 Mr. Amit Bansal with Ms. Seema
                                 Dolo, Advocates for R-4
     CORAM:
     HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
                      ORDER

     %                31.07.2018
CM No. 29951/2018
      Allowed, subject to all just exceptions.
WP(C) No. 7820/2018

Issue notice. Mr. Nikhil Goel, Mr. T. Singhdev and Ms. Seema Dolo, Advocates accept notices on behalf of respondent nos. 1, 3 and 4 respectively and seeks time to file reply. Let reply be filed within four weeks. Rejoinder, if any, be filed within four weeks, thereafter.

List on 14th November, 2018.

CM No. 29952/2018 Issue notice.

Having heard learned counsel appearing on behalf of the parties, the present application is disposed off with the following order.

1. The present petition under Article 226 of the Constitution of India has been instituted on behalf of a candidate, who aspires for admission to a medical college under the physically handicapped category, i.e. hearing impaired. The petitioner having successfully passed the class XII examination conducted by the CBSE appeared in the National Eligibility Cum Entrance Test (for short 'NEET') (UG) - 2018 for admission to a medical college.

2. The information bulletin published by the CBSE clearly provided that, in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the 'said Act') and based on the merit list of the NEET (UG), 5% of the annual sanctioned intake capacity shall be filled up by the candidates of benchmark disability, in accordance with law.

3. Persons with benchmark disability are defined under Section 2(r) of the said Act. The same is reproduced hereunder for the sake of completeness:

"person with benchmark disability" means a person with not less than forty per cent, of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority."

4. A conjoint reading of the relevant provisions of the said Act, leads to the following inescapable conclusions :-

(a). Persons with benchmark disability, as provided under Section 2 (r) of the said Act are entitled to equality of opportunity, respect of inherent dignity, individual autonomy, freedom of choice, right against non- discrimination, full and effective participation in society and equal opportunities and are not to be discriminated against on the basis of their disability.

(b). The provisions of the said Act require that any person with benchmark disability who suffers a minimum of 40% of a specified disability is entitled, as a matter of right, to be educated in institutions which are funded and/or recognised by the Government of India.

(c). The Schedule to the said Act further defines specified disability in relation to a person with a hearing impairment as deaf, provided they have 70 DB hearing loss in speech frequencies in both ears.

5. A plain reading of the above conclusions and the Preamble of the said Act makes it axiomatic that, the same is a legislation enacted with the object of promoting and securing the rights of persons with disabilities. It is an enactment designed to ensure a dignified response to the urgent societal demand for mainstreaming persons with disabilities and including them in the benefits of higher education.

6. Needless to state that, the enactment is in consonance with the principles enshrined and enunciated in the Constitution of India, and in particular the preamble, as well as, the Directive Principles of State Policy as inserted in Part - IV thereof.

7. It is in the above background that, the Court must consider the recommendations of the Expert Committee set up by the Medical Council of India (for short 'MCI') on candidates with the specified benchmark disability of impairment of hearing, whereby they have determined as follows :-

" In view of the competencies that cannot be completely or partially acquired by a person with auditory disability, a provision be incorporated in the Graduate Medical Education Regulations that persons with auditory disability greater than set bench mark of 40% are not entitled to pursue Graduate Medical Education."

8. It is an admitted position that, the aforesaid recommendation has not yet attained finality and is pending consideration before the Central Government.

9. It is further an admitted position that the amendment, in this behalf, has so far not been carried out in the relevant regulations.

10. Coming to the facts of the present case, the petitioner secured 95.077883 percentile score in the NEET (UG) - 2018. The petitioner's overall rank category rank and category-PH Rank were 62153, 34080 and 29 respectively.

11. The petitioner having been found to have hearing disability of 70%, was issued a disability certificate by Vardhman Mahavir Medical College & Safdarjung Hospital, New Delhi. Pursuant thereto, on the basis of her academic excellence, the benchmark disability and the disability certificate, the petitioner was issued a provisional allotment letter (round I) and advised to report and join the Sardar Patel Medical College, Bikaner. Subsequent thereto on 2nd July, 2018, in pursuance of the report dated 5th June, 2018, impugned in the present petition, the petitioner has been denied admission altogether.

12. Learned counsel appearing on behalf of the petitioner would urge that, in terms of the provisions of the said Act and the decision of the Hon'ble Supreme Court in All Kerala Parents Association of Hearing Impaired and Another vs. State of Kerala and Others, reported as (2018) 2 SCC 410, the right of the petitioner predicated on her disability to be admitted to a Medical College is absolute.

13. Per contra, Mr. Singhdev, learned counsel appearing on behalf of the MCI - Respondent no.2 would urge that, the persons with specified benchmark disabilities, such as the petitioner, who suffer from hearing impairment, in terms of the impugned report published by them, cannot be permitted to participate in the admission process to the course of MBBS. Learned counsel relies on a decision of a Division Bench of Bombay High Court in Joshua Jesse Levi & Anr. vs. State of Maharashtra & Ors. in this behalf.

14. Mr. T. Singhdev, learned counsel appearing on behalf of the MCI, has also invited my attention to a decision of a Division Bench of this Court in Deepshikha vs. Medical Council of India & Ors. reported as 2015 (150) DRJ 387) and in particular to paragraph 41 thereof, to urge that the classification which renders hearing impaired persons as being ineligible to study medicine is rational and has a reasonable nexus with the object sought to be achieved.

15. In this behalf, reliance is placed on paragraph 34 of the decision in Deepshikha (Supra) to state that, in Union of India vs. Devendra Kumar Pant reported as (2009) 14 SCC 546, the Hon'ble Supreme Court observed that, if the disability would effect the discharge of functions or performance in a higher post or would pose a threat to the safety of the public, persons with such disability can be denied admission to the course of MBBS.

16. In my considered view, the decisions canvassed on behalf of the MCI to justify the recommendations of the Committee, do not come to their aid, inasmuch as, they do not deal with specified benchmark disabilities.

17. It is trite to state that, where an enactment provides for an act to be carried out in a particular manner, the law requires that it be carried out in that specified manner and no other. [Ref: King Emperor Vs. Khwaja Nazir Ahmed, reported as (1945) 47 BOMLR 245].

18. Mr. Justice Frankfurter in Viteralli vs. Saton reported as 359US535: Law Ed (second series) 1012 enunciated the rule that "An executive agency must be rigorously held to the standards by which it professes its action to be judged. This judicially evolved rule of administrative law is now firmly established and, if we may add, rightly so. He that takes the procedural sword shall perish with the sword." The Courts, commencing with the decision of the Hon'ble Supreme Court in R.D Shetty vs. International Airport Authority reported as (1979) 3 SCC 489, have followed this principle in a catena of decisions.

19. The said Act came into being to give effect to the United Nations Conventions on the Rights of Persons with Disabilities, to which India was a signatory. The Preamble to the said Act does not permit for any deviation from the stated objective, namely, to accord respect for inherent dignity, individual autonomy, freedom of choice, right against non-discrimination, full and effective participation in society and equal opportunities in all walks of life, as eloquently elaborated therein, to persons who are differently abled.

20. In this view of the matter, I am of the considered view that prima facie, the recommendations of the Committee set up by the MCI, disentitling persons with specified benchmark disability from pursuing under graduate medical education are abhorrent to the principles enshrined in the Constitution of India and to the provisions of the said Act.

21. Consequently, I have no hesitation in directing the official respondent to direct the petitioner to participate in the counselling for the MBBS course for the academic session 2018-2019, at a medical college, in terms of the rank secured by her in the NEET - 2018, under the physically handicapped category and to reserve a seat for her in MBBS course for the said session.

22. With the above directions, the application is disposed of.

23. A copy of this order be given dasti to the counsel for the parties, under the signatures of the Court Master.

SIDDHARTH MRIDUL, J JULY 31, 2018 p