Rajasthan High Court
Mahendra Kumar S/O Shri Sahiram vs State Of Rajasthan on 8 February, 2022
Bench: Akil Kureshi, Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 278/2022
Mahendra Kumar S/o Shri Sahiram
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Vinod Goyal on behalf of
Mr. Dhanraj Bhaskar through VC
For Respondent(s) : Mr. Harshal Tholia on behalf of
Dr. V.B. Sharma (AAG) through VC
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
08/02/2022
D.B. Civil Misc. Application No.1/2022:
Vide order dated 05.02.2022 the appellant was directed to
implead National Medical Council as party-respondent. Pursuant to
above present application has been filed and therefore no separate
order is required to be passed in this application. The same is
disposed of. Amended cause title be taken on record.
D.B. Special Appeal Writ No. 278/2022 and D.B. Civil Misc.
Stay Application No.1846/2022:-
This appeal is filed by the original petitioner to challenge the
judgment dated 24.01.2022 passed by the learned Single Judge in
the writ petition. Case of the petitioner is that he is suffering from
serious hip dislocation from birth. He qualifies as a person with
disability as defined in Section 2(s) of the Right of Persons with
Disabilities Act, 2016 (for short 'the Act of 2016'). He had
appeared in NEET examination and on the basis of score that he
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secured in such examination he had applied for admission in MBBS
course as a person suffering from disability. The issue of his
disability therefore became relevant. Since the State authorities
did not accept his status as such, he had filed the said petition
with a prayer that the authorities be directed to issue a permanent
disability certificate showing the percentage of disability of
petitioner which would enable him to secure the benefit of
reservation. This prayer was necessary because in the opinion of
the medical board, the disability was curable and therefore until
the treatment is completed final disability certificate cannot be
issued.
During the pendency of the petition the learned Single Judge
asked the petitioner to appear before the medical board on
17.01.2022 and requested the medical board to certify the
disability of the petitioner as per the statutory requirements. The
medical board examined the petitioner on 18.01.2022 and issued
a certificate suggesting that his permanent disability can be
certified after maximum medical improvement after treatment is
completed. The learned Single Judge was of the opinion that such
report of the medical board cannot be overruled or ignored since it
was not established that the petitioner suffers from permanent
disability in the excess of 40% of specified locomotive disability,
he cannot be treated as a person with benchmark disability as
defined in Section 2(r) of the Act of 2016. The petition was
eventually dismissed.
On 05.02.2022 the Division Bench of this Court recorded the
submissions of the counsel for the appellant-original petitioner
that the Act of 2016 nowhere requires that the disability should be
in permanent nature. The Division Bench asked the petitioner to
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appear once again before the disability board on 07.02.2022 and
requested the board to prepare its report and submit the same
before the Court. The board was requested to assess the
impairment of the petitioner as on the date of examination without
going into the question whether it is curable or not.
Consequently the disability board once again examined the
petitioner on 7.02.2022 and has given a report which reads as
under:-
"In reference to above cited matter medical board held
meeting on 07.02.2022 and examined clinically Shri
Mahendra Kumar S/o Shri Sahiram, age 19yr, R/o Shri
Laxman Nagar, Phalodi, Shri Lachhamannagar, Laxman
Nagar, Jodhpur his mark of identification is checked
and found that he is having congential hip dislocation
left side. His present physical impairment is 51% (Fifty
One Percent) on date on examination."
From the materials on record what emerges is that petitioner
is having disability since birth. In the petition the petitioner had
produced a certificate of the medical board certifying that the
petitioner was suffering from 45% locomotive disability. This
certificate was issued on 04.12.2019. Presently the medical board
has assessed his disability as 51%. We are unable to understand
how a disability which has arisen since birth and has not shown
any significant improvement for past 19 years is stated to be
curable by the medical board. If at all in December, 2019 the
disability of the petitioner was assessed at 45% as on 07.02.2022
it is assessed by the medical board at 51%.
Prima-facie we do not think that the benefit of reservation and
other benefits envisaged under the Act of 2016 can be claimed by
a person who suffers from mere or temporary or transient
disability. Such disability has to be of a permanent nature.
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However when a disability which persisted for a period of 19 years
and in past over 2 years has shown no sign of improvement; if at
it is deteriorated, cannot be described as temporary or transient.
Such disability cannot be ignored for the purpose of granting
benefit to the person concerned on a general observation that it is
curable in nature and permanent disability can be assessed only
once the entire treatment is over. Present is not a case where a
person has met with some accident causing injury which may lead
to either temporary or permanent disability. Present is a case
where a person who was born 19 years back with disability
continues to suffer from locomotive disability even today.
As an exceptional case therefore pending this appeal we
would require the authorities to invite the petitioner for
counselling in the second round which is on going and consider his
case as a person suffering from benchmark locomotive disability.
If on such basis on merits against the reserved vacancies of his
class of persons he merits admission in medical course, the same
shall be granted. We have resorted to these interim measures
since the counselling for admission in MBBS course is at an
advanced stage. If no order is passed today the petitioner will
miss the bus forever for the current year vacancies. Since time is
too short to give full expression to our prima-facie legal beliefs
this order is passed by way of interim directions.
Interim relief application is disposed of accordingly.
List on 24.03.2022.
(SUDESH BANSAL),J (AKIL KURESHI),CJ
KAMLESH KUMAR /71
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