Gauhati High Court
Page No.# 1/13 vs The State Of Assam And 9 Ors on 20 November, 2024
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/13
GAHC010241782024
2024:GAU-
AS:11747-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/390/2024
NADIYA TABASSUM
D/O- NOZMUL HOQUE, VILLAGE- BORPUKHURI, MOUZA- JUGIJAN, DIST-
HOJAI, PIN-782435
VERSUS
THE STATE OF ASSAM AND 9 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF HEALTH AND FAMILY WELFARE , DISPUR, GUWAHATI-
06
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
DEPARTMENT OF HEALTH AND FAMILY WELFARE
DISPUR
GUWAHATI-06
3:THE DIRECTOR GENERAL (ME)
GOVT. OF INDIA
DIRECTORATE GENERAL OF HEALTH SERVICES
NIRMAN BHAWAN
NEW DELHI-11
4:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIXMILE
KHANAPARA
GUWAHATI-22
5:THE PRINCIPAL CUM CHIEF SUPERINTENDENT
GUWAHATI MEDICAL COLLEGE AND HOSPITAL
Page No.# 2/13
BHANGAGARH
GUWAHATI- 781032
6:THE SELECTION COMMITTEEREP. BY ITS CHAIRMAN
AT GAUHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032.
7:THE CHIEF COMMISSIONER
DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES
MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
GOVT. OF INDIA
SHASTRI BHAWAN
NEW DELHI
PIN-110003
8:DIRECTOR AND HOD
REGIONAL INSTITUTE OF OPTHALMOLOGY
GUWAHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032
9:JOINT DIRECTOR OF HEALTH SERVICES
HOJAI
PIN-782435.
P.O AND P.S- HOJAI
ASSAM
10:MEMBERS
DISTRICT MEDICAL DISABILITY BOARD
HOJAI
PIN-782435
ASSA
Advocate for the Petitioner : MR. M K DAS, MR. A DAS,MS. B CHETRY,S J DUTTA,C SAIKIA
Advocate for the Respondent : SC, HEALTH, SC, SOCIAL JUSTICE AND EMPOWERMENT
Page No.# 3/13
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 20-11-2024
Date of Jugment: 20-11-2024
JUDGMENT & ORDER (Oral)
(N. Unni Krishnan Nair. J)
Heard Mr. A. C. Borbora, learned Senior Counsel assisted by Mr. B. Bora,
learned counsel appearing for the appellant. Also heard Mr. B. Gogoi, learned
Standing Counsel for the Health Department appearing for the respondent nos. 1, 2,
4, 5, 6, 8 & 9.
2. The present Intra Court Appeal has been instituted, assailing the Judgment &
Order dated 05.11.2024, passed by the learned Single in WP(C)/5698/2024.
3. The appellant, herein, had appeared in the National Eligibility-cum-Entrance Test
UG-2024 for admission into UG medical courses in Government medical institutions
across the country. The said examination had taken place on 05.05.2024 and on
04.06.2024, the results thereof, came to be declared. In the initial results declared,
the appellant had secured 638991 All India Ranking position and she was ranked at
position 1350 amongst the PwD category candidates. However, the said results were
further revised and the revised results were published on 26.07.2024, wherein, the All
India Ranking of the appellant was 632152 and she was ranked at Serial No. 1330
amongst PwD category candidates.
4. On publication of the NEET-UG-2024 results, the Director of Medical Education,
Assam, vide communication dated 07.08.2024 had published an educational notice
and therein, circulated the Assam State Merit list for admission into 1 st year
MBBS/BDS courses in Government Medical and Dental Colleges of the State for the
session-2024. The appellant was placed at serial No. 9699 in the said list as enclosed
with the communication dated 07.08.2024.
Page No.# 4/13
5. The Director of Medical Education, Assam, thereafter, published a admission
notification dated 29.08.2024, wherein it was intimated that the provisional select list
of candidates after the first round of online counseling for admission into 1 st year
MBBS/BDS courses for the session-2024 in the Government Medical and Dental
Colleges, Assam under Assam State Quota has been published and was available in
the official website of the Directorate. It was further stipulated therein that the
candidates provisionally selected under the PwD category are directed to report with
all relevant certificates, in original, to the office of the Principal cum Chief
Superintendent, Gauhati Medical College & Hospital for verification of their disability
status by the constituted Medical Board on 28.09.2024. Accordingly, the appellant who
was shortlisted for admission as a PwD category candidate after the 1 st counseling,
appeared before the constituted Medical Board and she was examined by the Board in
relation to the disability suffered by her. Thereafter, vide admission notice dated
06.09.2024, the list of candidates found eligible under PwD (DIVYANG) for admission
into MBBS/BDS in the Government Medical and Dental Colleges, Assam, for the
session-2024 was published however, therein, the Roll. No. of the appellant did not
find mention. The appellant not being selected for admission into the 1 st year MBBS
course, led to institution by her of writ petition being WP(C)/5077/2024 before this
Court, praying for a direction for her admission into Diphu Medical College, Diphu as
per the provisional select list of candidates issued by the Director of Medical Education
on 29.08.2024.
6. The Writ Court, on considering the matter and with consent of all the parties to
the proceeding, vide order dated 28.10.2024, requested the authorities of the All India
Institute of Medical Sciences (AIIMS), Guwahati to examine the appellant and for
assessment of her disability in terms of the Disability Certificate issued to her by the
competent authority. Vide the said order; the Writ Court further directed that the
Medical Board, constituted by the authorities of AIIMS shall examine the appellant,
strictly, in terms of the amendment notification dated 13.05.2019, issued by the
Page No.# 5/13
Medical Council of India and the notification dated 12.03.2024, issued by the
Government of India. Accordingly, the Medical Superintendent, AIIMS, Guwahati
constituted a Medical Board Committee on 29.10.2024 with the approval of the
competent authority. The appellant appeared before the constituted Medical Board of
AIIMS, Guwahati and the Board, on examination of the disability suffered by the
appellant, proceeded vide its report dated 30.10.2024, to assess the disability suffered
by the appellant as follows:-
"BCVA Rt eye: 6/36, left eye: 6/24 (both eye pseudophakia). 40% (Forty
percent) visual impairment, category III(a) (Low Vision)".
7. It is to be noted that the appellant was assessed by the Medical Board
constituted at AIIMS, Guwahati, to have suffered 40% (Forty percent) visual
impairment and was placed in Category III(a) (Low Vision). However, the report of the
Board as constituted by the AIIMS authority, on being placed before the Writ Court,
the same was disputed by the appellant by contending that she was not examined by
using advanced low vision aids such as Telescope/Magnifier.
8. The learned Single Judge, upon examination of the notifications holding the field
with regard to the procedure to be followed for examination of persons with visual
impairment for assessment of the extent of their disability, proceeded to dispose of
the writ petition vide order dated 04.11.2024 by directing the Director of Medical
Education, Assam to facilitate the petitioner to appear before a Medical Board,
constituted by the Principal cum Chief Superintendent, Guwahati Medical College &
Hospital vide an Office Order dated 30.08.2024, on 04.11.2024 itself.
9. The learned Single Judge vide the said order dated 04.11.2024, had further
directed that the constituted Medical Board shall examine the applicant by applying
advanced low vision aids such as Telecopes/Magnifier and thereafter, give a finding as
to whether the disability suffered by the petitioner can be brought down below 40%.
The Medical Board as constituted in the Guwahati Medical College & Hospital
Page No.# 6/13
examined the appellant on 04.11.2024 and therein, assessed the petitioner to be
suffering from 40% visual impairment. Being aggrieved, the appellant has again
instituted WP(C) No. 5698/2024 before this Court.
10. The Writ Court, upon considering the submissions advanced by the appellant,
herein, in the proceeding of WP(C)/5698/2024 and also appreciating the fact that
neither the Court nor the learned counsels appearing were experts in the matter,
requested Dr. Bharati Deori Boruah, Professor of Ophthalmology, Guwahati Medical
College & Hospital cum Member of the Medical Board to appear before the Court.
Accordingly, Dr. Bharati Deori Boruah appeared before the Writ Court and explained
that the appellant had cataract operation in both her eyes and she also had implanted
artificial lens in her eyes. It was further stated that the appellant is using normal
glasses and accordingly, when the appellant was examined, she was so assessed
initially without glasses and thereafter, with application of glasses. The expert
accordingly, opined that the assessment made in respect of the appellant to have been
suffering 40% visual impairment cannot be further reduced. Upon considering the
matter in the light of the reports of the committee, which had examined the appellant,
herein, with regard to assessment of her visual impairment as well as the opinion
rendered by said Dr. Bharati Deori Boruah, the learned Single Judge vide order dated
05.11.2024, proceeded to conclude as follows:-
"17. This Court has given an anxious consideration to the case in hand,
particularly, when it is dealing with a disabled person having low vision and is
vying for a seat in the MBBS Course under the Assam State Quota. Considering
the anxiety of the petitioner this Court had requested the authorities in the AIIMS
Guwahati to constitute a Medical Board to examine the petitioner with regard to
her low visual impairment. In the report of the Medical Board, AIIMS Guwahati,
her visual impairment is shown as 40%. However, as this Court found that the
petitioner was not satisfied with the opinion of the independent body, i.e.,
Medical Board, AIIMS Guwahati, this Court had directed the Director of Medical
Education, Assam on 04.11.2024 to facilitate the petitioner to appear before the
Page No.# 7/13
Medical Board that was constituted on 2 nd of September, 2024. In the second
examination report the petitioner after correction is found to have distance
vision of 6/24 (P) with regard to her right eye and 6/36 with regard to her left eye
and her visual impairment is shown as 40% with Disability category - IIIa (Low
Vision).
18. Under the circumstances, this Court is not in a position to go against the
report of the experts with regard to the visual impairment of the petitioner.
Accordingly, this Court does not see any merit in the writ petition and is
accordingly, dismissed".
11. The present appeal has been instituted by the appellant being aggrieved by the
said order dated 05.11.2024, passed by the learned Single Judge in WP(C)5698/2024.
12. Mr. Borbora, learned Senior Counsel by referring to the medical examination
report of the appellant by AIIMS, as well as by the Medical Board constituted at the
Guwahati Medical College & Hospital, has submitted that the examination of the
appellant was not so carried out by the Boards in question by following the
prescriptions made by the Medical Counsel of India vide notification dated 13.05.2019,
wherein it was mandated that the persons with visual impairment/visual disability of
more than 40% may be made eligible to pursue MBBS Course and be given
reservation, subject to the condition that the visual impairment is brought to a level
less than benchmark 40% with advanced low vision aids such as Telescope/Magnifier
etc. Mr. Borbora, has further submitted that the appellant being admittedly, a person
suffering from visual impairment and she being within the zone of consideration for
admission into the 1st year MBBS or BBS Course as a PWD candidate, the Medical
Board, ought to have while examining the appellant with a view to assess her visual
impairment, done such examination, strictly, in accordance with the guidelines laid
down by the Medical Council of India as well as the Government of India in the matter.
13. Mr. Borbora, learned Senior Counsel has submitted that in the event, the
examination of the appellant was so carried out, strictly, in accordance with the
Page No.# 8/13
prescriptions made in this connection by the Medical Council of India as well as the
Government of India, Ministry of Social Justice and Empowerment, the disability
suffered by the appellant would have been so assessed below 40%, enabling her to be
so admitted into the 1st year MBBS course in terms of her NEET-UG-2024 score as a
PwD (DIVYANG) category candidate. Mr. Borbora, has submitted that the Medical
Board having not applied advanced low vision aids such as Telescope/Magnifier etc., a
proper and due assessment of the visual impairment suffered by the appellant had not
occasioned. Accordingly, Mr. Borbora, submits that the Judgment and Order dated
05.11.2024, passed by the learned Single Judge would call for an interference along
with further direction to the respondent authorities for carrying out a fresh
examination in respect of the appellant, herein, strictly by applying advanced low
vision aids such as Telescope/Magnifier and thereafter, to come to a conclusion as to
whether the appellant's visual impairment can be assessed at a level lower than 40%.
14. Mr. Borbora, learned Senior Counsel, in support of his submission has relied
upon a decision of the Hon'ble Supreme Court in the case of Bambhaniya Sagar
Vasharambhai Vs. Union of India & Ors., reported in 2023 Live Law (SC) 841
and the decision of the Hon'ble Supreme Court in the case of Omkar Ramchandra
Gond Vs. The Union of India & Ors., [Judgment dated 15.10.2024 in Civil Appeal
No. 10611/2024].
15. Per contra, Mr. B. Gogoi, learned Standing Counsel appearing for the Medical
Education Department, by referring to an affidavit filed by the Director of Medical
Education, Assam, has submitted that the committees which had examined the
appellant in terms of the directions passed in the matter, by the Writ Court, had
assessed the appellant's visual impairment at 40%. Mr. Gogoi, has submitted that in
terms of the guidelines laid down by the MCI, the visual impairment of the appellant
being so assessed at 40%, she would not be entitled to be treated as a person with
disability for the purpose of admission into medical courses.
Page No.# 9/13
16. Mr. Gogoi, learned Standing Counsel by referring to the opinion of Dr. Bharati
Deori Baruah, which has been noticed by the learned Single Judge in the impugned
Judgment and Order dated 05.11.2024, has contended that the said opinion would lay
to rest any doubts that may exist in the matter and the appellant, on account of the
cataract operation undergone by her and implanting of artificial lens in her eyes along
with the fact that the petitioner was using normal glasses, the visual impairment
suffered by the petitioner cannot be brought down to a level below 40%, so as to
making her eligible for admission into medical courses in terms of Appendix H-1 to the
notification dated 13.05.2019, issued by the Medical Council of India. Mr. Gogoi,
learned Standing Counsel, in the above premises has submitted that the learned
Single Judge had not committed any error in rejecting the case of the appellant and
accordingly, the same would not call for any interference by this Court.
17. We have heard the learned counsels appearing for the parties and also perused
the materials available on record.
18. It is to be noted that the appellant while appearing for the first counseling had
relied upon a Disability Certificate, issued by the Joint Director of Health Services,
Hojai, Assam and therein, she was assessed to be suffering from 40% permanent
disability in relation to both her eyes (Low Vision). The appellant, initially, was
considered by the Director of Medical Education, Assam for admission into 1 st year
MBBS course for the year 2024 as a (PwD) category candidate. However, the
candidates claiming admission under the (PwD) category were required to undergo a
verification of their disability by a Board constituted by the Principal cum Chief
Superintendent, Guwahati Medical College. The appellant had accordingly, appeared
before the said Board and the Board having found the appellant to be suffering only
40% permanent disability in relation to both her eyes, the name of the appellant was
not shortlisted for admission into the 1 st year MBBS course in various medical colleges
of the State vide the Admission Notice dated 06.09.2024. Accordingly, the petitioner
Page No.# 10/13
had approached this Court by way of instituting WP(C)5077/2024, praying for a
direction to the respondent authorities for admitting the appellant under PwD
(DIVYANG) category into the 1st year MBBS course in Diphu Medical College, Diphu by
reckoning the Disability Certificate issued to her by the Joint Director of Health
Services, Hojai, Assam.
19. The learned Single Judge, on appreciating the contentions raised by the
appellant, was pleased vide order dated 28.10.2024, to request the authorities of the
All India Institute of Medical Sciences (AIIMS) for assessing her disability in terms of
the Disability Certificate issued to her by the competent authority. This Court had
further directed that such examination by the AIIMS authorities, shall be strictly done
in terms of Appendix H-1 to the amendment notification dated 13.05.2019, issued by
the Medical Council of India and the notification dated 12.03.2024, issued by the
Ministry of Social Justice and Empowerment, Government of India. Accordingly, the
AIIMS authorities constituted a Medical Board and examined the petitioner. On such
examination, the Board, as constituted by the AIIMS authorities had assessed the
appellant to be suffering from 40% visual impairment, category III (a) (Low Vision).
The said assessment as made by the AIIMS authorities was disputed by the appellant,
herein, before the learned Single Judge in the proceedings of WP(C)5077/2024.
Accordingly, the learned Single Judge vide order dated 04.11.2024, was pleased to
dispose of the said writ petition with a direction to the Director of Medical Education,
Assam to facilitate the appellant to appear on 04.11.2024 before the Medical Board
constituted by the Principal cum Chief Superintendent, Guwahati Medical College &
Hospital, vide order dated 30.08.2024. The appellant was directed to appear before
the said Board on, or before 5.00 PM of 04.11.2024.
20. The learned Single Judge had further vide the order dated 04.11.2024, directed
the Medical Board to examine the appellant by applying advanced low vision aids such
as Telescope/Magnifier etc., and thereafter, to give a finding as to whether the
disability of the appellant can be brought down to 40%. The Medical Board as
Page No.# 11/13
constituted by the GMC & H authorities, on examination of the appellant, had
assessed her visual impairment again at 40% and placed her in Category III (a) (Low
Vision). Being aggrieved, the appellant had instituted WP(C)/5698/2024, interalia,
praying for re-evaluation of the medical verification process for selection of the
appellant under PwD (DIVYANG) category for admission into 1 st year MBBS course in
Diphu Medical College by taking into consideration the Disability Certificate, issued to
the appellant by the Joint Director, Health Services, Hojai, Assam.
21. The learned Single Judge, upon considering the reports submitted by the AIIMS
authorities as well as the medical reports submitted by the committee as constituted
in the Guwahati Medical College & Hospital, required the presence of Dr. Bharati Deori
Baruah, Professor of Ophthalmology, Guwahati Medical College and Hospital and a
member of the said Medical Board to appear before the Court. Dr. Bharati Deori
Baruah, accordingly, appeared before the Court and explained as to why the visual
impairment suffered by the appellant cannot be assessed below 40%. The learned
Single Judge, in the order dated 05.11.2024 had recorded the opinion rendered by Dr.
Bharati Deori Baruah in the matter and the same being relevant is extracted herein
below:-
"16. Dr. Bharati Deori Baruah is present in Court as requested and she
explained that the petitioner had a cataract operation in both her eyes and she
had also has implanted artificial lens in her eyes. Apart from that, she is using
normal glasses and accordingly, when the petitioner was assessed, they had
assessed her without glass and after application of glass. In the view of the
specialist, the 40% visual impairment of the petitioner cannot be brought down."
22. The Appendix H-1 to the amendment notification dated 13.05.2019, issued by
the Medical Council of India had prescribed that in respect of persons suffering from
visual impairment, both blindness and poor vision, such person would be eligible for
admission into medical course but, not eligible for PwD quota, if his/her disability is
assessed less than 40% disability. The said notification further proceeds to provide
Page No.# 12/13
that if the disability is assessed as equal to, or more than 40%, such candidate would
not be eligible for admission to any medical course. The said notification further
mandates that persons with visual impairment/visual disability of more than 40% may
be made eligible to pursue MBBS Course 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 Telescope/Magnifier.
23. As noticed herein above, the appellant was initially in the Disability Certificate,
issued to her by the Joint Director of Health Services; Hojai, Assam assessed to have
suffered 40% permanent disability in relation to both her eyes, the said assessment
was maintained by the AIIMS authorities upon examining the appellant in terms of the
directions passed by the learned Single Judge in the proceedings of WP(C)/5077/2024.
The said assessment was further maintained by the Board constituted at the Guwahati
Medical College & Hospital in terms of the directions passed by the learned Single
Judge vide order dated 28.10.2024 in WP(C)/5077/2024. The medical opinion with
regard to the disability suffered by the appellant is consistent.
24. The above being the position, the opinion as extracted herein above, rendered
by Dr. Bharati Deori Baruah, before the learned Single Judge assumes significance.
The said opinion reflects that the appellant had cataract operation in both her eyes
and she also had implanted artificial lens in her eyes. It was also highlighted by the
Specialist that the appellant was using normal glasses and that the appellant was
assessed without glasses and also after application of glasses. Accordingly, the
Specialist had asserted that the assessment of the visual impairment of the appellant
at 40% cannot be further brought down. In view of the above position and also in
view of the medical treatment received by the appellant on account of the cataract
operation in both her eyes, the opinion of the Medical Boards which had examined the
appellant at different points of time, in terms of the directions passed by the learned
Single Judge, cannot be ignored.
Page No.# 13/13
25. Accordingly, this Court, proceeds to hold that the conclusions reached by the
learned Single Judge to the effect that the Court is not in a position to go against the
report of experts, with regard to the assessment of the extent of visual impairment of
the appellant, cannot be said to be erroneous. The reports of the Medical Boards
assessing the extent of the visual impairment suffered by the appellant and the
consistent view emerging with regard to the visual impairment suffered by the
appellant when considered with the opinion as rendered in the matter by Dr. Bharati
Deori Baruah, we are of the considered view that the opinion rendered by the Medical
Boards and the assessment of the appellant's visual impairment by them at 40%,
would not mandate an interference by us and accordingly, the appellant is to be held
to be not eligible for admission into the medical course as PWD (DIVYANG) candidate.
26. In view of the above conclusions reached by us, the decisions as relied upon by
Mr. Borbora, learned Senior Counsel for the appellant, in our considered view, would
not advance the case of the appellant herein.
27. Accordingly, the present writ appeal is held to be devoid of any merit and
consequently, the same stands dismissed. However, there would no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
