Rajasthan High Court
Mahendra Kumar S/O Shri Sahiram vs State Of Rajasthan on 24 January, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 173/2022
Mahendra Kumar S/o Shri Sahiram, Aged About 19 Years, R/o
Village Post Laxman Nagar, Tehsil Bapini (Falodi), District
Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Medical
And Health Department, Government Secretariat, Jaipur.
2. The Superintendent Of SMS Hospital, Tonk Road, Jaipur.
3. The Convener, Medical Board, SMS Hospital, Tonk Road,
Jaipur.
4. The Director General, National Testing Agency, First Floor,
NSIC-MDBP Building, Okala Industrial Estate, New Delhi.
5. The Chairman, NEET UG Medical And Dental/ Counseling
Board, NEET 2021, Government Dental College, Subhash
Nagar, Behind Tb Hospital, Jaipur.
----Respondents
For Petitioner(s) : Mr.Vinod Goyal, Adv.
For Respondent(s) : Dr.V.B.Sharma, AAG assisted by
Mr.Harshal Tholia, Adv.
Mr.Angad Mirdha, Adv.
Mr.M.S.Raghav, Adv.
[All Through Video Conferencing]
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
24/01/2022
This writ petition has been filed by the petitioner seeking a
direction to issue Permanent Disability Certificate, showing the
percentage of disability, as per the Rights of the Persons with
Disability Act, 2016 (for short, 'the Act of 2016').
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(2 of 12) [CW-173/2022]
The petitioner has further prayed that a direction is required
to be issued to the respondents for treating the petitioner in the
category of Persons with Disability (PwD), as per the result of
National Eligibility-cum-Entrance Test (for short, 'NEET') Under
Graduate 2021 Examination and after providing such reservation,
the Counselling Board further may be directed to allow the
petitioner to participate and award proper merit and rank, while
giving admission in the MBBS Course.
The petitioner has pleaded that after having requisite
eligibility to appear in the National Eligibility-cum-Entrance Test for
admission in Under Graduate Medical Course, he appeared in the
said examination having Roll No.3904017008. The petitioner has
further pleaded that while filling up the application form, he had
specifically mentioned the type of disability i.e. Locomotor
Disability, as provided under the Schedule of the Act of 2016.
The petitioner has pleaded that the Department of Medical &
Health, Government of Rajasthan has also issued the disability
certificate showing the Locomotor Disability upto 45% on
04.12.2019 and on the basis of the said certificate, the petitioner
had applied for his admission claiming the reservation in PwD
category.
The petitioner has pleaded that he secured All India Rank in
counselling as 106977 in the category of PwD, he secured 106 th
Rank.
The petitioner has pleaded that the instructions issued by the
respondents provided that the disability certificate was to be
obtained by him from SMS Medical College, Jaipur, as per the
Notice dated 01.12.2021, issued by the Government of India,
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(3 of 12) [CW-173/2022]
Directorate General of Health Services, Medical Counselling
Committee, New Delhi.
The petitioner has pleaded that he appeared before the
Medical Board of SMS Medical College, Jaipur for the purpose of
getting Medical Disability Certificate and the Authorities issuing
the certificate dated 17.12.2021 made a note that "final
permanent physical impairment can only be given after treatment
completion".
The petitioner alleged that the Medical Board has declined to
issue proper disability certificate showing the percentage of
disability and also ignored the earlier disability certificate issued
by the State of Rajasthan. The petitioner has also pleaded that the
Authority i.e. SMS Medical College, Jaipur, while issuing the
certificate has specifically mentioned that there is a congenital
dislocation of left hip and the same being of permanent disability,
the Medical Board committed an apparent error while issuing such
certificate for the purpose of NEET Counselling.
The petitioner has pleaded in his petition that since he has
been diagnosed with 45% Permanent Disability by the State
Authorities and the definition given in Section 2(r) of the Act of
2016 provides "Person with Bench-Mark Disability" and as such,
the Medical Board failed to discharge its obligation by not issuing a
proper certificate in favour of the petitioner as per guidelines.
This Court, while taking up the matter on 12.01.2022, at
admission stage, after service of copy of the writ petition on
counsel for the respondents, found that the petitioner was
required to appear again before the Disability Certificate Centre
i.e. SMS Medical College, Jaipur and the said Board was also
required to look into the relevant provisions and instructions for
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(4 of 12) [CW-173/2022]
the purpose of certification of the petitioner, as whether he was
having disability or not. The conclusion drawn by the Medical
Board earlier that an assessment can only be done after treatment
prima facie did not seem to be the correct position to reflect
disability of the petitioner.
This Court accordingly directed that the petitioner was to
appear before the Medical Board on 17.01.2022 and the said
Board was to undertake the exercise of judging the disability of
the petitioner, as per the statutory requirement.
This Court was informed on 18.01.2022 that initially the
petitioner was called for medical examination on 17.01.2022,
however, the Board Members again called the petitioner for his
Medical examination on 18.01.2022 and the medical report was to
be furnished to the Court.
Learned counsel for the State Mr.Harshal Tholia, submitted
that the petitioner was examined again for the purpose of
issuance of certificate of disability and the Authorities have again
opined that disability of the petitioner i.e. Hip dislocation is of
treatable condition and permanent disability certificate can only be
given after the treatment is completed.
The report of the Medical Board dated 18.01.2022 was
furnished to the Court and copy of the same was also supplied to
learned counsel for the petitioner.
Learned counsel for the petitioner Mr.Vinod Goyal submitted
that even the report dated 18.01.2022 given by the Medical Board
is not as per the provisions contained in the Act of 2016 and the
Gazette notification dated 13.03.2019 issued by the Ministry of
Social Justice and Empowerment (Department of Empowerment of
Persons with Disability Divyangjan).
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(5 of 12) [CW-173/2022]
Learned counsel for the petitioner submitted that the
disability, which has been suffered by the petitioner is required to
be certified in the percentage and even if he is undergoing
treatment, the same would not result into depriving him from
issuance of certificate of disability, as per the provisions contained
in the Act of 2016.
Learned counsel submitted that as per Section 2(r) 'Person
with Benchmark Disability' means a person with not less than 40%
of a specified disability where specified disability has not been
defined in a measurable terms and includes a person with
disability where specified disability has been defined in measurable
terms, as certified by the Certifying Authority.
Learned counsel submitted that the definition of "specified
disability" has been given in Section 2(zc) and the same means
the disabilities as specified in the Schedule.
Learned counsel submitted that the schedule appended to
the Act of 2016 provides the "specified disability" Clause - I is
about "Physical Disability" i.e. Locomotor disability (a person's
inability to execute distinctive activities associated with movement
of self and objects resulting from affliction of musculoskeletal or
nervous system or both including the extreme physical deformity
as well as advanced age which prevents him/her from undertaking
any gainful occupation.
Learned counsel for the petitioner submitted that the
definition provided in Section 2(s) in the Act of 2016 defines the
"Persons with Disability" means a person with long term physical,
mental, intellectual or sensory impairment which, in interaction
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(6 of 12) [CW-173/2022]
with barriers, hinders his full and effective participation in society
equally with others.
Learned counsel submitted that as per definition of "Person
with Disability" under the Act of 2016, if the petitioner has
Locomotor disability, which is in fact a long term physical
disability, the respondents have committed an error in issuing the
certificate to the petitioner only because he is under treatment of
his disability i.e. fracture in his Hip.
Learned counsel submitted that logic of the certificate issuing
Authority that the Hip Dislocation of the petitioner may be
corrected with surgery and final disability may only be given after
treatment, the same is not the correct interpretation of the
provisions, which have been enacted for the purpose of giving
benefit to the persons, who are suffering from disability.
Learned counsel for the petitioner further submitted that the
Apex Court in the case of Avni Prakash Vs. National Testing
Agency (NTA) & Ors. (Civil Appeal No.7000/2021) decided
on 23.11.2021, has also emphasized the rights of the Person with
Disability to be secured by the Authorities by giving them all the
benefits, as per the provisions of the Act of 2016.
Learned counsel for the petitioner further submitted that the
Co-ordinate Bench at Principal Seat at Jodhpur in S.B.Civil Writ
Petition No.278/2022 (Sena Khokhar Vs. The State of
Rajasthan & Ors.) dated 10.01.2022 has also considered the
guidelines and notification dated 04.02.2019, issued by the Union
of India, whereby the Medical Board is required to record a finding
about the percentage of disability.
Learned counsel on the strength of the said judgment
submitted that if there is absence of percentage of disability in the
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(7 of 12) [CW-173/2022]
certificate, recording of finding about candidates' ineligibility is
illegal.
Learned counsel on the strength of the said judgment
submitted that the petitioner since has Hip dislocation and is
suffering locomotor disability, denial of percentage of disability
even at the stage when he is undergoing treatment, is clearly
against the provisions contained in the Act as well as the
guidelines issued and as per the law declared by this Court in the
case of Sena Khokhar (supra).
Learned Additional Advocate General Dr.V.B.Sharma
submitted that initial examination of the petitioner by expert body
of the Medical Board had clearly stated that final percentage of the
disability of petitioner, will be possible to be ascertained only after
petitioner gets himself operated and treated for the temporary
disability.
Learned counsel submitted that as per the direction given by
this Court, the Board was constituted to re-examine the petitioner
on 17.01.2022 and the Expert Body of the Medical Board came to
the conclusion with regard to disability of the petitioner that it
would be possible to ascertain only after the petitioner undergoes
his treatment.
Learned counsel submitted that the Medical Board has
concurrently opined that the petitioner is suffering from left side
Hip Dislocation and Permanent Physical Impairment/Disability
Certificate can only be given after treatment of the same.
Learned counsel submitted that the bare reading of the
definition as provided under Section 2(s) of the Act of 2016 clearly
provides that there has to be a long term physical, mental,
intellectual or sensory impairment and in case, the petitioner is
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(8 of 12) [CW-173/2022]
granted such benefit, at this stage, the same would be against the
interest of those persons, who are suffering from permanent
disabilities and who are actually entitled for such benefit.
Learned counsel Mr.Angad Mirdha, appearing on behalf of the
National Medical Council submitted that this Court has exercised
its discretion by directing the Medical Board to undergo medical
examination of the petitioner again by the Expert Body and if the
said Body has opined that the petitioner does not have permanent
disability, then no such certificate can be issued to him and the
views of the Expert Body may not be substituted by this Court
while exercising its jurisdiction.
Learned counsel submitted that prerogative of the Medical
Board to examine a candidate independently without any bias or
malafide by keeping in mind the disabilities suffered by a
candidate cannot be termed as arbitrary and if the relevant
guidelines have been followed by the members of the Board,
interference by this Court would not be appropriate.
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
This Court at first blush while considering the certificate
issued by the Medical Board dated 17.12.2021 (Annexure A-6)
annexed with the writ petition, found that disability of the
petitioner is required to be examined again by the Authorities and
they need to keep in mind the provisions contained in the Act of
2016 and the notifications, issued by the Ministry of Social Justice
and Empowerment (Department of Empowerment of Persons with
Disability) Divyangjan, dated 05.02.2019 & 13.05.2019.
This Court accordingly directed the petitioner to appear
again for his medical examination before the Board i.e. SMS
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(9 of 12) [CW-173/2022]
Medical College, Jaipur, and the Board again re-examined the
petitioner and the experts have opined that the certificate of
disability may only be given after treatment and the petitioner is
not qualified under PwD category.
The experts have further opined that the disability suffering
by the petitioner is in a treatable condition and permanent
disability can only be certified after maximum medical
improvement and after completion of treatment, the Authorities
have also referred Annexure-II Locomotor Disabilities 67 th Gazette
Notification.
This Court, after going through the report of the Medical
Board dated 17/18.01.2022, finds that the Authorities have
considered the condition of the petitioner about his
ailment/disability and if they found that the treatment given to the
petitioner is still under-way and no certificate of permanent
disability can be given at this juncture, this Court is afraid to
substitute its own views on the report given by the
experts/members of the Medical Board.
This Court specifically asked learned counsel for the
petitioner as when a person who is under treatment for an
Orthopedic issue/fracture, whether such candidate can be treated
as Person with Disability and learned counsel for the petitioner in
this context only relies upon the definition given in Section 2(r) of
the Act of 2016 i.e. 'Person with Benchmark Disability'.
Learned counsel submitted that the Authorities are required
to determine disability of the petitioner even, at this juncture,
while the petitioner is undergoing the treatment and if the
petitioner is having more than 40% specified Locomotor Disability,
the Authorities cannot deny such certificate to the petitioner.
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(10 of 12) [CW-173/2022]
This Court though has full sympathy with the physical
condition of the petitioner, who is said to have suffered fracture in
his left hip and he is still under treatment, however, the Court is
required to look into the relevant provisions for entitlement of a
candidate for issuance of such certificate.
This Court on bare reading of definition given under Section
2(s) of the Act of 2016 finds that a person with disability means a
person with long term physical/mental intellectual impairment
which barrier/hinders his full and effective participation in the
Society with the others.
This Court is afraid to judge the disability of the petitioner at
this stage by terming it to be a long term disability.
The submission of learned counsel for the petitioner that if
the petitioner after treatment is found to be having long term
physical permanent disability of more than 40%, in such an
eventuality, the petitioner would be deprived to get seat as per
reservation provided to him, suffice it to say by this Court that the
relevant date for considering such certificate of disability has to
be, when the candidate is applying for participating in NEET UG
Course and if the authorized Authorities acting in bonafide manner
finds that the permanent disability cannot be judged at that stage,
then such action of the respondents cannot be termed as illogical
and arbitrary.
The submission of learned counsel for the petitioner that the
certificate issued by the State Government about permanent
disability of the petitioner in the year 2019 and he is still
undergoing the treatment and the same would result into
permanent disability, this Court can only express its view by
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(11 of 12) [CW-173/2022]
observing that the parameters while issuing the certificate for the
medical course, as determined by the expert bodies, already
notified i.e. SMS Medical College, Jaipur being the Certification
Centre, no benefit can be allowed to be drawn only on the basis of
disability certificate issued by the Government of Rajasthan,
Department of Medical & Health, as the disability certificate filed
by the petitioner dated 04.12.2019.
The reliance placed on the judgment passed by the Apex
Court in the case of Avni Prakash (supra), this Court on careful
reading of said judgment, finds that the issue before the Apex
Court was with regard to granting benefit of additional one hour to
write the examination while appearing in NEET UG Course and
since the candidate was deprived from such right, the Apex Court
intervened in the matter and discussed the provisions contained
under the Act of 2016.
This Court, with utmost regards to the judgment of the Apex
Court, finds that the present controversy is a different controversy
with regard to treating the petitioner as person with permanent
disability and to give opinion of the Court to substitute the opinion
of the experts.
The reliance on the judgment passed by a Coordinate Bench
in the case of Sena Khokhar (supra), this Court finds that the
issue before the Court was with regard to percentage of disability
not reflected in the certificate issued by the Authorities and the
Court opined that the percentage of disability is required to be
written.
This Court on reading of the said judgment also finds that
the case of that petitioner in that case was again referred to the
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
(12 of 12) [CW-173/2022]
Disability Assessment Board and they were to examine the
candidate afresh and record the percentage of disability and if the
candidate was found to be having disability, as per notification
dated 04.02.2019, he was to get the benefit and in case, the said
disability was not given, the candidate was not to be considered in
the Physically Handicapped (PH) Category.
This Court is in complete agreement with the said judgment
as the learned Judge has left the matter to be examined by the
Disability Assessment Board and opinion of the said Board was to
be prevail.
This Court finds that the provisions contained under the Act
of 2016 as well as the instructions which have been issued by the
Government of India nowhere provides that a person, who is
undergoing the treatment for his disability, has to be considered
for issuance of certificate for the purpose of giving benefit for
pursuing his educational course.
This Court, finding itself in such a situation where no such
guidelines are provided, has no option except to read the
provisions, as has been enacted by the Authorities and followed by
them scrupulously in respect of judging the candidate with regard
to disability.
This Court, accordingly, does not find any force in the
present writ petition and the same is dismissed.
(ASHOK KUMAR GAUR),J
Monika/Himanshu Soni/52
(D.B. SAW/278/2022 has been filed in this matter. Please refer the same for further orders)
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