Madras High Court
J.Sri Arun Madhavan vs The Secretary on 18 October, 2022
W.P.(MD).No.23280 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.23280 of 2022
and
W.M.P.(MD).No.18135 of 2022
J.Sri Arun Madhavan ... Petitioner
vs.
1.The Secretary,
Selection Committee,
Directorate of Medical Education,
162, Periyar E.V.R.High Road,
Kilpauk,
Chennai 600 010.
2.The Director of Medical Education,
Kilpauk,
Chennai 600 010.
3.The Regional Medical Board
represented by its Secretary,
Rajiv Gandhi Government General Hospital,
Chennai 600 003.
4.The Secretary,
National Medical Commission,
Pocket -IV, Dwarka Phase -I,
New Delhi 110 077. ... Respondents
1/24
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W.P.(MD).No.23280 of 2022
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India for issuance of a Writ Certiorarified Mandamus to call for the
records relating to the impugned certificate of disability vide Certificate
No.027217/RMB/RSSSH/22, dated 27.09.2022 issued by the 3rd
respondent and quash the same and consequently directing the 1st and
2nd respondents to permit the petitioner to participate in the counseling
under the special category for Persons with Bench Mark Disabilities, as
per the provisions of Rights of Persons with Disabilities Act, 2016, for
the admission to MBBS degree course for the academic year 2022 - 2023
session by taking into account the Disability Certificate issued by the
Medical Authority, Madurai, Tamil Nadu dated 10.02.2020.
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For R1 : Mr.D.Gandhiraj
Special Government Pleader
ORDER
This Writ Petition has been filed challenging the impugned
certificate of disability dated 27.09.2022, issued by the third respondent
and to quash the same and consequently direct the respondents 1 and 2 to
permit the petitioner to participate in the counseling under the special
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category for Persons with Bench Mark Disabilities, as per the provisions
of Rights of Persons with Disabilities Act, 2016, for the admission to
MBBS degree course for the academic year 2022 - 2023 session by
taking into account the Disability Certificate issued by the Medical
Authority, Madurai, Tamil Nadu, dated 10.02.2020.
2. The case of the petitioner is that he has completed higher
secondary during the year 2021 – 2022. He belongs to Backward
Community. He is suffering from slipped femoral epiphysis, which is a
rare disorder of adolescents in which the growth plate is damaged and the
femoral head moves (slips) with respect to the rest of femur. He had
undergone surgery for the above said disorder in a private hospital at
Madurai. The petitioner has made an application to the Medical authority
constituted under the provisions of Right of Persons with Disabilities
Act, 2016. After medical examination and following the necessary
diagnosis method, the Medical authority has issued disability certificate
mentioning the disability as Locomotor disability with 40% of Bench
Mark Disability. The said Medical Authority is constituted under the
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W.P.(MD).No.23280 of 2022
above Act by the Department of Empowerment of Persons with
Disabilities, Ministry of Social Justice and Empowerment, Government
of India. Further, the Government of India has also issued Unique
Disability I.D. Vide TN2250620030082872.
3. It is the further case of the petitioner that he has made an
application for National Eligibility cum Entrance Test (UG) – 2022 for
the admission of Medical Course and written the examination on
17.07.2022. The National Testing Agency has declared the result and
issued score card on 07.09.2022. The petitioner has secured 159 marks
out of 720. The eligible cut of mark for the category of Backward
Community (Person with Disability) in short BC (PWD) is 40 percentile
i.e., 93 marks. Since the petitioner has secured 159 marks, he is eligible
to be considered in the category of Backward Community (Person with
Disability) for getting admission.
4. Further, though the petitioner was having disability certificate
issued by the competent authority, he was advised to ensure the eligibility
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W.P.(MD).No.23280 of 2022
for persons with bench mark disabilities category by getting himself
examined at the Disability Assessment Board constituted at Rajiv Gandhi
Government General Hospital, Chennai. The petitioner has appeared
before the third respondent on 27.09.2022 and he was not subjected to
any medical test or any diagnosis method to assess the bench mark of
disability/percentage of disability. He was not even subjected to x-ray to
assess the percentage of disability. Without subjecting any test or
following any diagnosis method, the third respondent has simply issued
the impugned certificate of disability mentioning that the petitioner has
25% of Locomotor disability. Though the competent authority after
medical examination and x-ray test has assessed the disability as 40%,
the third respondent has assessed the disability as 25% in a casual
manner without following any procedure contemplated under the Act.
5. The petitioner also states that prospectus has been issued by the
first respondent directing the candidates to submit application between
22.09.2022 and 03.10.2022. The last date for submission of application is
03.10.2022. The petitioner has made an application on 29.09.2022 along
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with the disability certificate issued by the competent authority, Madurai
through online. He has also sent a hard copy of the application and
necessary certificate by registered post as directed by the first
respondent. The respondents have announced that the counseling would
be conducted on 10.10.2022 for admission meant for All India quota.
Aggrieved over the disability certificate issued by the third respondent,
the petitioner has filed the present writ petition.
6. The learned counsel appearing for the petitioner would submit
that as per the Rights of Persons with Disabilities Act, 2016, the
petitioner has to be assessed for assessment of specified disabilities.
Sections 56 and 57 of the Rights of Persons with Disabilities Act, 2016,
deal with the guidelines for assessment of specified disabilities and
designation of certifying authorities and Section 58 of the said Act deals
with the procedure for certification, which reads as follows:
58. Procedure for certification.
(1) Any person with specified disability, may apply, in
such manner as may be prescribed by the Central
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Government, to a certifying authority having jurisdiction,
for issuing of a certificate of disability.
(2) On receipt of an application under sub-section
(1), the certifying authority shall assess the disability of the
concerned person in accordance with relevant guidelines
notified under section 56, and shall, after such assessment,
as the case may be,—
(a) issue a certificate of disability to such
person, in such form as may be prescribed by
the Central Government;
(b) inform him in writing that he has no
specified disability.
(3) The certificate of disability issued under this section
shall be valid across the country.
7. The concerned authority under the said Act has assessed the
disability as 40% and Rajiv Gandhi Government General Hospital,
Chennai cannot ignore the same, but the third respondent has assessed
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the disability and fixing the same as 25% in a casual manner and they
have not examined him properly and with an ulterior motive, they have
given 25%.
8. He would further submit that Certificate of Disability to be
issued by the authorities concerned under Rule 18 of the Rights of
Persons with Disabilities Rules, 2017 and various procedures to be
followed by the authorities while issuing the certificate and as per the
said section only after satisfying himself that the applicant is a person
with disability, issue a certificate of disability in his favour in Forms V,
VI and VII, as the case may be.
9. According to the petitioner, this person will be loosing his right
to get a seat in MBBS selection and the certificate of disability issued by
the Central Government has to be taken into account and the Court has to
pass a positive order.
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10. Earlier, the learned counsel for the petitioner submitted that the
petitioner may be examined by another Board and he may be directed to
appear before the another Medical Board and now, he has filed the
petition only for impleading the said Medical Board. But he has not
asked for direction and the direction petition is filed, which is pending
for numbering. He would further submit that the matter cannot be simply
adjourned as the counseling is starting tomorrow and the persons with
disability will be appeared first and allotted and the petitioner has to be
given a chance by this Court by allowing this writ petition and asked for
final disposal.
11. The learned counsel for the petitioner has relied upon a
judgment of this Court in W.P.No.15557 of 2009, dated 30.09.2009,
wherein, it is stated that
“28. In this case, since the Expert Committee which
has no authority to oversee the certificate issued by the
notified Medical Board, has found the percentage of
disabilities suffered by the petitioner as 25%, considering the
fact that the Selection Committee while entertaining such a
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W.P.(MD).No.23280 of 2022
doubt is entitled to refer the matter once again to the notified
Medical Board, the Selection Committee is directed to refer
the matter to the notified Medical Board again to ascertain
the correctness of the certificate issued by the Medical Board
earlier dated 28.5.2009 and to take an appropriate decision.
29. The writ petition stands allowed by setting aside
the clause 42(iv) of the prospectus for M.B.B.S./B.D.S.
Admission for 2009-10 in so far as it relates to the
constitution of expert committee to oversee the certificate
issued by the District Medical Board and also the clause
(footnote) in the Annexure III to the prospectus to that effect,
with direction to the second respondent to refer the petitioner
to the notified Medical Board under the Persons with
Disabilities (Equal Opportunities Protection of Rights and
Full Participation) Act, 1995 and the Rules made thereunder,
within one week from the date of receipt of a copy of this
order and after receiving any such revised certificate from
the notified Medical Board, the second respondent shall
grant admission to the petitioner for First Year M.B.B.S.
course for the year 2009-10, if he is eligible as per the
percentage of disabilities stipulated in the prospectus. Till
such order is passed, the interim order directing to keep one
seat vacant shall continue to be in operation. No costs.
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W.P.(MD).No.23280 of 2022
12. The learned counsel for the petitioner has also relied upon a
judgment of this Court in W.P.(MD).No.9814 of 2012, dated 04.09.2012,
wherein, it is stated as follows:
“13. The learned Special Government Pleader submits
that according to the Expert Committee constituted by the
second respondent the disability of the petitioner was 75%
and therefore, in view of the provisions contained in the
prospectus declaring the person with more than 70% to be
ineligible, the petitioner was rightly not selected for
admission.
14. On consideration, I find no force in the contention
of the respondents. The certificate on which the reliance is
placed by the petitioner is issued by the statutory Medical
Board which shall prevail over any other certificate.
Admittedly, a person suffering from 50% disability is eligible
for consideration for admission of MBBS course.
15. The clause in prospectus stipulating that an Expert
Committee constituted by Directorate of Medical Education
is to decide the acceptance of the Certificate issued by the
District Medical Board is as null and void being violation of
the Central Act and therefore, not sustainable in law.
16. Consequently the decision of the respondents in
declaring the petitioner ineligible based on the
recommendations of committee constituted by the second
respondent can not sustain, as the Certificate issued by
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statutory Medical Board under the Act is only to be accepted
in view of the settled law.”
13. The learned Special Government Pleader has filed a detailed
counter on behalf of the respondents 1 and 2, wherein, it has been stated
as follows:
The petitioner has secured 159 out of 720 marks in NEET
UG-2022 examination. He has produced the Disability certificate issued
by the Rajiv Gandhi Government General Hospital for applying
MBBS/BDS degree courses under Persons with Disability Quota for the
academic year 2022 -2023.
It is submitted that the admission of MBES / BDS courses for the
academic year 2022 - 2023 as per the prospectus Clause -11:
“4. Eligibility for Bench Mark Disabilities as per the
Right of Persons with Disability Act, 2016.
a. 5% of the totcil number of seats available in Government
Medical / Dental Institutions will be filled by candidates falling
under Persons with Bench Mark disabilities as per MCI
Guidelines / Regulations in accordance with the Rights of Persons
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W.P.(MD).No.23280 of 2022
with Disabilities Act, 2016. If the seats reserved for the persons
with disabilities in a particular category remain unfilled on
account of unavailability of candidates, then earmarked seats
would be included in the general category in the 2nd round of
counselling.
b. Candidates are required to visit the, official websites
www.tnhealth.tn.gov.in, www.tnmedicalselection.org for latest information in
this regard.
Candidates with less than 40% disabilities are NOT ELIGIBLE for
reservation, provided that the candidates are eligible to apply for
MBBS / BDS Degree Courses under general category.
c. As per "ANNEXURE-A" published by- the National Medical
Commission (erstwhile Medical Council of India) in pursuance of the
communication from Ministry of Health and Family Welfare as follows:
"Presence of significant Locomotor Disability with or
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without any other significant disability such as visual or hearing-
speech or learning . etc. which will make it very difficult for the
candidate to pursue and complete the course satisfactorily and
may significantly increase the risk to the candidate or the
patient(s) - may be declared NOT ELIGIBLE for admission".
d. The candidates are required to produce a certificate
obtained from the Regional Medical Board constituted at
Rajiv Gandhi Gricernment General Hospital, Chennai-600
003 . for the purpose of assessing the nature and the extent of
disability in Annexure V. The certificate must have been
obtained WITHIN THREE MONTHS ' PRIOR TO
SUBMITTING the application for seeking admission under
this category. If the certificate has been obtained earlier,
then the application will be rejected. If the candidate fails to
submit the Disability Medical Certificate then their
application will be rejected under special category.
e. Candidates who consider themselves eligible for
Persons with Bench Mark Disabilities Category are , advised
to ensure their eligibility by getting themselves examined at
the Disability Assessment Board constituted at Rajiv Gandhi
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W.P.(MD).No.23280 of 2022
Government General Hospital, Chennai before their
scheduled date of counselling, failing which, the candidates
will not be considered for allotment of seats under Persons
With Bench Mark Disabilities.
f . The eligibility will be decided as per the Rights of Persons
with Benchmark Disability Act and decision from the
Regional Medical Board constituted at Rajiv Gandhi
Government General Hospital, Chennai-03 regarding
disability assessment will be final.'
4. It is submitted that the Hon"ble Madurai Bench of
Madras High Court issued order as follows:-
..."The third respondent is directed to submit a report
on what basis the - certificate of disability was issued to the
petitioner fixing the disability at 25%, while the Medical
Authority under the Department of Empowerment of Persons
with Disabilities, the Ministry of Social Justice and
Empowerment, had issued the Disability Certificate fixing
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the disability of the petitioner at 40%."..
5. It is submitted that the 3 rd respondent of the Regional
Medical Board, Rajiv Gandhi Government General Hospital,
Chermai has submitted the report vide Ref: No.
028250/RMB/RGGGH/2022 date: 10.10.2022 as follows:
"Candidate Mr.J.Sri Arun Madhavan, 18/M already had
treatment in private Hospital in the year 2015 for
Bilateral Slipped Capital Femoral Epiphysis. We have
gone through all the Medical Records including X-rays
which was shown by the Candidate at the time
examination and he was subjected to various clinical
examinations to evaluate the Physical Disability by an
Expert Team Consisting of Senior Members on 27.09.2022
at Regional Medical Board, Rajiv Gandhi Government
General Hospital/ Madras Medical College, Chennal-3.
On examination:
Candidate is able to Walk inderiendently and able to sit
and stands without support. Both upper - limbs and spine
clinically evaluated and found to be normal.
Examination of Lower limbs:-
Right and left ankle clinically evaluated and found to be normal,
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Right and Left knee clinically evaluated and found to be normal.
The Candidate underwent surgery in the Right hip which was
clinically evaluated thoroughly and found to have restriction o i f
movement for which awarded disability of 9%.
The Candidate underwent surgery in the Left hip which was
clinically evaluated thoroughly and found to have restriction of
movement for which awarded disability of 9%.
Formulation applied for restriction of motion and calculated
disability score of 12% (9% versus 6%)
Shortening of lower limb was measured and noted as 1 inch for whch
awarded 4% of disability.
Candidates was having minimal difficulty in stability compounds of
both hips which was evaluated and disability of 10% awarded.
Formulation applied for range of motion and stability component and
calculated as 21% (12% versus 10%)
Total Physical Disability score was awarded on calculating
restriction of motion at both r - tips and stability components
of both hips and added with disability score given for
shortening also recommended formulation for calculation of
disability score was applied.
Tolal Physical Disability is 21% + 4% (Shortening) = 25%
Ccunlidate underwent thorough clinical examination for the
assessment of range of motion and stability components of both lower
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W.P.(MD).No.23280 of 2022
limbs and shortening of lower limbs also noted.
Based on Person with Disability Act 2016, complete Physical
evaluation, appropriate formulation as recommended by Act
applied for disability score calculation and found the total
. physics disability score of 25%.
As the candidate and his parent were requested for Re-evaluation, the
next day (28.09.2022) candidate was subjected to re-examination
thoroughly and found to have no change in disability score awarded
earlier.
14. The learned counsel appearing for the petitioner would submit
that the authorities have to decide on the prayer made by the petitioner in
the writ petition as the disability certificate granted by the Central Board
will prevail over the expert committee.
15. On going through the prospectus of the said application issued
for MBBS, it has been clearly stated that the candidates with less than
40% disabilities are not eligible for reservation, provided that the
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W.P.(MD).No.23280 of 2022
candidates are eligible to apply for MBBS/BDS Degree Courses under
general category. Guidelines regarding admission of students with
“Specified Disability” under the Right of Persons with Disabilities Act,
2016, with respect to admission in MBBS Course.
“c. As per “ANNEXURE-A' published by the National
Medical Commission (erstwhile Medical Council of India) in
pursuance of the communication from Ministry of Health
and Family Welfare as follows:
“Presence of significant Locomotor Disability with or
without any other significant disability such as visual or
hearing speech or learning etc. which will make it very
difficult for the candidate to pursue and complete the course
satisfactorily and may significantly increase the risk to the
candidate or the patient (s) – may be declared NOT
ELIGIBLE for admission.”
d. The candidates are required to produce a certificate
obtained from the Regional Medical Board constituted at
Rajiv Gandhi Government General Hospital, Chenai 600
003 for the purpose of assessing the nature and the extent of
disability in Annexure V. The certificate must have been
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OBTAINED WITHIN THREE MONTHS PRIOR TO
SUBMITTING the application for seeking admission under
this category. If the certificate has been obtained earlier,
then the application will be rejected. If the candidate fails to
submit the disability Medical Certificate then their
application will be rejected under special category.
e. Candidates who consider themselves eligible for
Persons with Bench Mark Disabilities Category are advised
to ensure their eligibility by getting themselves examined at
the Disability Assessment Board constituted at the Rajiv
Gandhi Government General Hospital, Chennai, before their
scheduled date of counseling, failing which, the candidates
will not be considered for allotment of seats under Persons
with Bench Mark Disabilities.
f. The eligibility will be decided as per the Rights of
Persons with Benchmark Disability Act and decision from
the Regional Medical Board constituted at Rajiv Gandhi
Government General Hospital, Chennai-03 regarding
disability assessment will be final.
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16. According to the prospectus, the decision of the expert
committee of the Regional Medical Board constituted under Rajiv
Gandhi Government General Hospital, Chennai will be final and there
cannot be any expert opinion to be granted by this Court, as the Court
cannot be an expert regarding the medical terms and the clarification of
the disability of a person. Even though there is a discrepancy between
the percentage of disability in the earlier certificate issued by the Board
and the assessment made by the Rajiv Gandhi Government General
Hospital, Chennai, the earlier certificate was issued in the year 2020 and
this assessment has been made in the year 2022 and this Court cannot go
into the aspect of how the disability has been reduced in the said
assessment made by the Rajiv Gandhi Government General Hospital,
Chennai.
17. The authorities have also produced the original records for the
test done for the assessment. The Court cannot act as an expert and the
Court should not overstep their jurisdiction to upset the opinion of the
experts. The decision of the Rajiv Gandhi Government General Hospital,
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Chennai will be final as per the conditions stated in the prospectus and
the same will not be prevailed by the Court. At this juncture, the prayer
sought for by the petitioner cannot be granted by this Court and the writ
petition is dismissed. No costs. Consequently, the connected
Miscellaneous Petition is closed.
18.10.2022
Index:Yes/No
Internet:Yes/No
akv
Note: Issue order copy on 20.10.2022.
To
1.The Secretary,
Selection Committee,
Directorate of Medical Education,
162, Periyar E.V.R.High Road,
Kilpauk,
Chennai 600 010.
2.The Director of Medical Education,
Kilpauk,
Chennai 600 010.
3.The Regional Medical Board
represented by its Secretary,
Rajiv Gandhi Government General Hospital,
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W.P.(MD).No.23280 of 2022
Chennai 600 003.
4.The Secretary,
National Medical Commission,
Pocket -IV, Dwarka Phase -I,
New Delhi 110 077.
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W.P.(MD).No.23280 of 2022
V.BHAVANI SUBBAROYAN,J.
akv
W.P(MD)No.23280 of 2022
18.10.2022
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