Mohammed Afsal K.V vs State Of Kerala
2023 Latest Caselaw 8822 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                  WP(C) NO. 25432 OF 2023
PETITIONER/S:

          MOHAMMED AFSAL K.V, AGED 20 YEARS
          S/O.ABDUL RAHEEM K.V, KAPPADTAKATH VALIYIL,
          P.O.VETTOM, BP ANGADI VIA, TIRUR-2,
          MALAPPURAM-, PIN - 676102
          BY ADVS.
          KALEESWARAM RAJ
          THULASI K. RAJ
          APARNA NARAYAN MENON
          CHINNU MARIA ANTONY


RESPONDENT/S:

    1     STATE OF KERALA, REPRESENTED BY SECRETARY TO
          GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY
          WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-, PIN -
          695001
    2     SECRETARY TO GOVERNMENT,
          DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
          THIRUVANANTHAPURAM-., PIN - 695001
    3     CHIEF SECRETARY TO GOVERNMENT,
          SECRETARIAT, THIRUVANANTHAPURAM-., PIN - 695001
    4     DIRECTOR OF MEDICAL EDUCATION,
          DIRECTORATE OF MEDICAL EDUCATION, MEDICAL
          COLLEGE, MEDICAL COLLEGE KUMARAPURAM ROAD,
          CHALAKKUZHI, THIRUVANANTHAPURAM, KERALA, PIN -
          695011
    5     COMMISSIONER FOR ENTRANCE EXAMINATION,
          5TH FLOOR KSHB BUILDING, SS KOVIL RD, SANTHI
          NAGAR, THIRUVANANTHAPURAM, KERALA, PIN - 695001
    6     GOVT. MEDICAL COLLEGE,
          THE SUPERINTENDENT, ULLOOR - AKKULAM RD, NEAR SAT
          HOSPITAL MEDICAL COLLEGE JUNCTION, CHALAKKUZHI,
          THIRUVANANTHAPURAM, KERALA, PIN - 695011
                                     -2-
W.P.(C). No. 25432 of 2023



       7        THE ASSESSMENT BOARD FOR ASSESSING DISABILITY
                REPRESENTED BY ITS CHAIRPERSON, GOVERNMENT
                MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM,
                PIN - 695011
       8        NATIONAL MEDICAL COMMISSION
                (FORMERLY MEDICAL COUNCIL OF INDIA), REPRESENTED
                BY THE CHAIRMAN, POCKET- 14 , SECTOR - 8, DWARKA
                PHASE -1, NEW DELHI, PIN - 110077
       9        THE CONVENOR, NEET, CENTRAL BOARD OF SECONDARY
                EDUCATION, SIKSHA KENDRA, 2-COMMUNITY CENTRE,
                PREET VIHAR, DELHI, PIN - 110092
      10        SENIOR DIRECTOR
                NEET (UG) UNIT, NTA OF HIGHER EDUCATION,
                MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
                GOVERNMENT OF INDIA WEST BLOCK-1, WING NO.-6,
                2ND FLOOR, R K PURAM, NEW DELHI, PIN - 110066
      11        UNION OF INDIA,
                REPRESENTED BY SECRETARY TO GOVERNMENT MINISTRY
                OF HUMAN RESOURCES DEVELOPMENT, (DEPARTMENT OF
                HIGHER EDUCATION) CENTRAL SECRETARIAT, NEW DELHI,
                PIN - 110001
                BY ADVS.
                ADVOCATE GENERAL OFFICE KERALA
                TITUS MANI VETTOM
                SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)


OTHER PRESENT:

                SRI. S.MANU, DSGI


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                      -3-
W.P.(C). No. 25432 of 2023



                              P.V.KUNHIKRISHNAN, J.
                             ======================================================

                               W.P.(C) No. 25432 of 2023
                         =============================================================

                      Dated this the 14th day of August, 2023

                                           JUDGMENT

The above writ petition is filed with following prayers:

"i) To issue a writ of mandamus directing the respondent Board to conduct a re-examination of the disability of the petitioner and issue a disability certificate enabling him to be admitted under NEET-KEAM 2023 pursuant to Ext. P1 prospectus;

ii) To declare that the petitioner is entitled to 5% reservation as a person with disability for admission to MBBS Course under NEET KEAM 2023 pursuant to Ext.P1 prospectus;

iii) To issue a writ of mandamus direction to the respondents 1 to 4 to allow the petitioner to participate in the allotment process for admission to M.B.B.S/B.D.S/B.H.M.S courses etc. under NEET KEAM 2023.

iv) To issue a writ of mandamus directing the respondents to grant admission to the petitioner to the Courses under NEET KEAM 2023 according to the PH rank obtained by the petitioner, pursuant to Ext. P1 prospectus;

v) To issue such other orders, directions or writs as may be prayed for under the facts and circumstances of the case.

vi) To dispense with the filing of translation of vernacular document." (sic)

W.P.(C). No. 25432 of 2023

2. The petitioner is an aspirant for the NEET KEAM (Kerala

Engineering Agricultural and Medical Entrance) 2023. According to

him, he is a person with 40% locomotor disability. The 5 th respondent

issued Ext.P1 Prospectus for Admission to Professional Degree

Courses 2023. In clause 5.3 of Ext.P1 prospectus it is prescribed that

5% of the seats available to the State are reserved for disabled

candidates for all courses in Government/Aided/Government Co-

sharing Colleges as stipulated in Section 32 Chapter VI of the Persons

with Disabilities Act, 2016 (PwDAct). According to the petitioner, he

satisfies this criteria being a person with benchmark disability as

evident by Ext.P1. The petitioner's NEET score was 264 and his

NEET percentile was 74.83. His NEET Rank was 511811 and the

Kerala State Medical rank was 27577. According to the petitioner, as

per Ext. P4 result, he qualifies for admission to the MBBS, BDS,

BHMS, BUMS Courses etc. It is the definite case of the petitioner that

he is confident of getting admission for the MBBS Course considering

that he has obtained a very high rank under the PwD quota.

Subsequently, the petitioner was called to appear before the Medical

W.P.(C). No. 25432 of 2023

Board as contemplated in Ext.P1 prospectus to assess the disability.

Accordingly on 14.06.2023, the petitioner appeared before the

Medical Board at Government Medical College Hospital,

Thiruvananthapuram. However, the petitioner was informed by the

Medical Officer that the petitioner will not be giving the approval of

the Board since his left hand cannot be used for the purposes of

surgery. It is submitted that the petitioner had informed the Medical

Officer by relying on the relevant pages of the prospectus and by

relying on the comprehensive report regarding the guidelines for

admission of persons with specified disabilities issued by the Medical

Council of India that there is no blanket ban on consideration of

candidates having locomotor disability in relation to upper limbs. But,

it is submitted that the Medical Board wrote a report to the effect that

the petitioner has not passed the medical test. In such circumstances,

this writ petition is filed.

3. Heard the counsel for the petitioner and the Government

Pleader.

W.P.(C). No. 25432 of 2023

4. When this writ petition came up for consideration on

03.08.2023, this Court passed the following order:

"This Court perused Annexure XXIV(i) of Ext.P1 Prospectus. What is stated in it is extracted hereunder:

"xxx Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course."

2. The learned Government Pleader made available the report of the experts. A bare perusal of the same would not show that the Medical Board considered the specific point mentioned in Annexure XXIV(i) of Ext.P1 Prospectus. I am of the considered opinion that the experts in the State Level Medical Board should once again examine the petitioner and submit a report before this Court.

3. The petitioner will appear before the State Level Medical Board on 04.08.2023 at 10.00AM.

4. The Government Pleader will communicate the same to the Medical Board. Post on 07.08.2023.

Issue a copy of this order to the Government Pleader and the counsel appearing for the petitioner today itself."

5. Based on the above direction, the petitioner appeared

before the Medical Board once again. But, in the second examination

also, the expert committee has categorically stated that as per the

W.P.(C). No. 25432 of 2023

National Medical Commission Regulation, both hands should be

intact with intact sensation, sufficient strength and range of motion.

These are essential to get eligible for medical courses. It is also

submitted by the Board that the candidate must be able to perform

various therapeutic and diagnostic procedures. According to the

Medical Board, it was found that the petitioner's hand is not intact

with intact sensation, sufficient strength and range of motion and

hence, he will be unable to perform the procedures mentioned above.

Hence, the Medical Board on second time also submitted that the

petitioner is not suitable for MBBS and BDS Courses.

6. In the light of the above findings of the Medical Board,

which was constituted as per the directions of this Court, this Court is

not in a position to set aside that findings and declare that the

petitioner is eligible for MBBS and BDS courses. This Court has no

expertise to decide the validity of the report of the Medical Board.

Moreover, this Court cannot sit in appeal against an order passed by

the Medical Board. Therefore, I am not in a position to accept the

contentions of the petitioner.

W.P.(C). No. 25432 of 2023

7. The counsel for the petitioner relied on paragraph 14 of

Ext.P11 judgment. It will be better to extract the same here:

"14. Reverting to the facts again, the petitioner is a person who can climb stairs with railing, though she has only minimum ability to run or jump and she has difficulty in moving with uneven surfaces. She is also a person who is able to handle most objects with somewhat reduced quality and/or speed of achievement. Denying admission to such a person in medical courses would be per se arbitrary. On a specific query from the court as to the basis for insisting that the hands of the candidates shall be intact with intact sensations, sufficient strength and range of motion, the answer given by the Standing Counsel for the third respondent was that the same is necessary for a person to perform the duties of a doctor. True, the doctors need to physically examine the patients, but all candidates pursuing medical courses are not becoming practising doctors. There are several other avenues also for candidates who are pursuing medical courses such as teaching, research etc. other than practising in surgical and clinical faculties which persons who do not have even the upper limbs are successfully doing. That apart, it cannot be said that a person who is not able to physically examine a patient cannot be a doctor, for having regard to the technological advancements achieved in the field of medicine especially during the last couple of decades, there would be umpteen replacements for physical examination in the years to come."

W.P.(C). No. 25432 of 2023

8. This Court passed such an order in the peculiar facts and

circumstances of that case. The same cannot be accepted in all cases

as a binding precedent. Each case has to be decided based on the facts

in that case. Moreover, it is informed that, the judgment is challenged

and the matter is pending before the apex court. In this case, there are

two reports from the Medical Board, in which it is declared that the

petitioner is not eligible for MBBS and BDS Courses because of his

peculiar nature of disability. In such circumstances, I am not in a

position to accept the contentions of the petitioner that based on

Ext.P11 judgment, the petitioner's case is to be allowed. No other

contentions are raised by the petitioner.

Therefore, this writ petition fails and hence, dismissed.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 25432 of 2023

APPENDIX OF WP(C) 25432/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES (MEDICAL, AGRICULTURAL, FORESTRY, VETERINARY, FISHERIES, ENGINEERING, ARCHITECTURE AND PHARMACY COURSE) 2023 ISSUED BY THE 5 TH RESPONDENT. Exhibit P2 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD, GOVERNMENT DISTRICT HOSPITAL, TIRUR, MALAPPURAM. Exhibit P3 TRUE COPY OF THE ADMIT CARD OF THE PETITIONER WITH APPLICATION NO.230410574884 WITH ROLL NO.2809100466.

Exhibit P4 TRUE COPY OF THE RESULT OF THE PETITIONER WHICH IS OBTAINED FROM THE OFFICIAL WEBSITE OF CEE KERALA.

Exhibit P5 TRUE COPY OF THE SCORE CARD OF THE PETITIONER FOR NEET 2023.

Exhibit P6 TRUE COPY OF THE SCREENSHOT OF THE PETITIONER OF KEAM 2023 OPTION REGISTRATION.

Exhibit P7 TRUE COPY OF THE REPORT REGARDING GUIDELINES FOR ADMISSION OF PERSONS WITH SPECIFIED DISABILITIES.

Exhibit P8 TRUE COPY OF THE SCREENSHOT SHOWING THE ROLL NUMBER OF THE PETITIONER Exhibit P9 TRUE COPY OF THE SCREENSHOT OF THE PAGE WHICH SHOWS THE PETITIONER'S RANK UNDER THE PWD (PERSONS WITH DISABILITY CATEGORY) AS RANK NO. 13.

Exhibit P10 TRUE COPY OF THE INTERIM ORDER DATED 09.12.2020 IN IA 3/2020 AND 4/2020 IN W.P(C)NO.24864/2020.

Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 25.01.2021 IN W.P(C)NO.27225/2020 Exhibit P12 TRUE COPY OF THE RELEVANT PAGES OF THE APPENDIX TO THE GRADUATE MEDICAL REGULATIONS, 2023 ExhibitP13 TRUE COPY OF THE RELEVANT PAGES FOR THE FIRST ALLOTMENT LIST

W.P.(C). No. 25432 of 2023

RESPONDENT EXHIBITS

Exhibit R5(a) True copy of the report of State Level Committee Exhibit R5(b) True copy of the detailed report dated 04.08.2023. along with covering letter issued by the Director of Medical Education dated 05.08.2023.