Delhi High Court
Ananditeerth P Mutalik vs Uoi And Anr on 22 November, 2018
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of order: 22.11.2018
+ W.P.(C) 1415/2011
ANANDITEERTH P MUTALIK ..... Petitioner
Through: Mr. G. Tushar Rao, Advocate.
versus
UOI AND ANR ..... Respondents
Through: Mr. T. Singhdev, Ms. Amandeep
Kaur, Ms. Puja Sarkar, Ms. Michelle
B. Das, Mr. Tarun Verma & Mr.
Abhijit Chakravarty, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
%
S. RAVINDRA BHAT, J. (Oral)
1. The petitioner is physically disabled to the extent of 50%
disability, and successfully completed the MBBS course inclusive of
the 1-year internship at KIMS Hospital at Hubli, Karnataka. KIMS
Hospital at Hubli issued a Certificate dated 04.03.2008 certifying that
he suffered from 50% permanent physical disability which was
non-progressive. For his admission into the Post Graduate course
through All India Post Graduate Medical Entrance Examination
(AIPGMEE) conducted by AIIMS, he appeared in the examination on
09.01.2011 and was ranked 14957 in the overall and at serial No. 21
overall in the "physically handicapped" category. He was to appear for
counselling on 26.02.2011. In terms of the guidelines in the Prospectus
Form for the Physically Disabled Persons, the petitioner appeared
before the Disability Assessment Board at Chennai being closest to his
home town in Karnataka. The said Board issued a Certificate of
Locomotor Disability stating therein that the petitioner was in fact
suffering from disability to the extent of 50% and has permanent
physical impairment to the above extent. However, at the same time the
Board declared the petitioner ineligible for admission in the medical
courses as per MCI guidelines. Also, the letter clearly stated that the
petitioner was rejected due to the reason that there were no guidelines
of the MCI regarding locomotor disability with respect to the upper
limbs.
2. The present petition is filed with regard to the validity of the
declaration of in-eligibility by the Disability Assessment Board,
Chennai despite the Board's certification that the petitioner was
suffering from 50% locomotor disability, as well as a direction that he
be called for counselling in the physically handicapped category in the
absence of any guidelines for the locomotor disability for the upper
limbs. The petition also challenges the vires of sub-clause (1)(a) and
proviso to clause (2)(iv) to Section 9 of the Post Graduate Medical
Education (Amendment) Regulation 2009 dated 25.03.2009 of the
MCI as ultra vires Section 32 and 39 of the Disabilities Act, 1995.
3. The petitioner contends that there is no guideline drafted by the
respondent MCI with respect to persons who are disabled from the
upper limbs, the petitioner cannot be arbitrarily and unjustly rejected
and disentitled from attending the counselling session. Also, the
counsel for the parties brought to the attention of the court, the appeal
against the decision of the ld. Division Bench of the High Court of
Gujarat in Special Civil Application No. 6412 of 2010 in the case of Dr.
Deval R. Mehta vs. UOI wherein it was categorically held that " .. the
Medical Council of India cannot exclude persons with upper limb
locomotory disability from admission in the Post Graduate course on
the ground that such person cannot elicit sign during clinical
examination."
4. Subsequently, the Supreme Court in the case of Medical Council
of India Vs. Deval R. Mehta and Ors (Civil Appeal No. 5865/2011),
dismissed the civil appeal as having been infructuous. Furthermore, in
Dr. Dnyaneshwar Dutta Dhepale Vs. State of Maharashtra &Ors(W.P.
No. 775 of 2015) and connected matters, the main challenge to clause
9(1)(a) of the Post Graduate Medical Education Regulations, 2000 for
admission to post-graduate courses, which prescribes that only
candidates afflicted with disability ranging from 40%to 70% will be
eligible to the benefit of reservation provided for persons with
disabilities, was rejected. The Bombay High Court observed that most
of the petitioners except perhaps one had already completed the
post-graduation course, and therefore, the bench decided that the
petitioners should not be divested of the benefit already obtained by
them. Further, the Court also observed that:
"9. We however clarify that this order is made in the
peculiar facts and circumstances of the present case, and
therefore, this order or the interim orders in these
petitions may not be cited as a precedent in future. We are
conscious that interim orders never constitute a
precedent. However, we note that such interim orders are
repeatedly cited at least the stage of plea for interim relief.
Therefore, we deem it appropriate to clarify this position.
All these petitions are disposed of in the aforesaid terms.
There shall be no order as to costs."
5. It is also a matter of record that MCI with the approval of the
Central Government amended the Regulation 9 of the Postgraduate
Medical Education Regulations, 2000, by Notification No.
MCI/18(1)/2018-Med./100818 dated 05.04.2018:
"(5) 5% seats of annual sanctioned intake capacity shall
be filled up by persons with benchmark disabilities in
accordance with the provisions of the Rights of Persons
with Disabilities Act, 2016, based on the merit list of
National Eligibility-Cum-Entrance Test for admission to
Postgraduate Medical Courses.
In order to be eligible for admission to Postgraduate
Course for an academic year, it shall be necessary for a
candidate to obtain minimum of marks at 50thpercentile
in the „National Eligibility-Cum-Entrance Test for
Postgraduate courses‟ held for the said academic year.
However, in respect of candidates belonging to Scheduled
Castes, Scheduled Tribes, and Other Backward Classes,
the minimum marks shall be at 40th percentile. In respect
of candidates with benchmark disabilities specified under
the Rights of Persons with Disabilities Act, 2016, the
minimum marks shall be at 45th percentile for General
Category and 40th percentile for SC/ST/OBC."
6. Pursuant to an interim order made in the present case, at an early
stage the petitioner has already completed his post-graduation.
Therefore, for the above reasons recorded, the challenge to the statute
has been rendered academic; the writ petition is disposed of as
infructuous.
S. RAVINDRA BHAT, J
PRATEEK JALAN, J
NOVEMBER 22, 2018
akv
