Rajasthan High Court

Poonam Arya vs U O I And Ors on 22 October, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:42010]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 7295/2014

Poonam Arya D/o Dr. Mohan Arya, aged about 18 years, resident
of 108/23, Shri Ramdev Ashish, Kotri Kota (Raj.)
                                                                    ----Petitioner
                                    Versus
1. Union of India through Secretary, Department of Health and
Family Welfare, Govt. of India, Nirman Bhawan, New Delhi-
110011.
2. Director General of Health Services (Ministry of Health and
Family Welfare), Room No. 444-A/446-A, Nirman Bhawan,
Maulana Azad Road, New Delhi-110001.
3. Medical Counseling Committee through its Assistant Director
General of Health Services (Ministry of Health and Family
Welfare), Room No. 444-A/446-A, Nirman Bhawan, Maulana
Azad Road, New Delhi-110001.
4. Medical Council of India, through its Secretary, Pocket-14,
Sector-8, Dwarka Phase-1, New Delhi-110077.
                                                                 ----Respondents

For Petitioner(s) : Mr. Pradeep Mathur For Respondent(s) : Mr. Angad Mirdha

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

Reserved on :: 10/09/2024 Pronounced on :: 22/10/2024

1. The present petition is filed under Article 226 of the

Constitution of India for violation of Article 14, 16, 21 of the

Constitution of India, with the following prayers:-

"It is, therefore, most respectfully prayed that the Hon'ble Court may call for the entire record concerning the case and by issuing writ, order or direction or in the nature thereof:-

(I) The impugned order dated 17.06.2014 declaring petitioner not eligible to do MBBS Course be quashed and set aside and declare the decision of the medical council of India to be interpreted to mean the disabled category candidate who have locomotor disability of upper limb too are eligible for doing MBBS Course.

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(ii) Further hold the petitioner to be eligible under the physically handicapped quota for admission. In the alternative declare the decision of only allowing candidates of locomotor disability of lower limb for admission as violative of Section 39 of the Disability Act, 1955.

(ii-a) The regulation for admission to undergraduate medical course/regulation-guidelines of MCI be declared null and void to Section 39 of the disabilities Act of 1995.Section 39 is reiterated below:-

Section 39- All educational institution to reserve seats for persons with disabilities: all government educational institutions and other education institutions receiving aid from the government, shall reserve not less than three percent seats for persons with disabilities.

(iii) Issue any other writ, order or direction, which this Hon'ble Court deems fit and proper, may kindly be passed in favour of the petitioner.

(iv) Cost of the writ petition be also awarded in favour of the petition."

2. The factual matrix of the instant matter is that the petitioner

had applied online for All India Pre-Medical/Pre-dental Entrance

Test (AIPMT) 2014-15 and secured a third rank under the category

of person with disability. The dispute arose when Vardhman

Mahaveer Medical College and Safdarganj Hospital, New Delhi,

declared the petitioner ineligible for admission in the medical

course as per the MCI/DCI guidelines, as petitioner was suffering

from right sided hemiplegia and from permanent physical

impairment of right lower and upper limb, and in terms of

percentage 50% of disability lower limb and upper limb

(Annexure-3).

3. Subsequently, being aggrieved by the certificate dated

17.06.2014, based on the guidelines of MCI, the present petition

is filed.

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4. In this background, learned counsel for the petitioner had

submitted that during the pendency of this present writ petition,

petitioner had completed the MBBS course and secured a degree

in the year 2021, and had also completed Basic Life Support

Training at B.J. Medical College Civil Hospital Campus Ahmadabad,

on 22.01.2018.

5. Thereafter, upon successful completion of MBBS, the

petitioner appeared for entrance examination qua Post Graduate

course, wherein Medical Board had issued another certificate of

disability dated 26.10.2021, holding petitioner ineligible and unfit

for pursuing Post Graduation, due to the upper limb disability,

however the same was challenged by filing another writ petition

i.e. SBCWP No. 1050/2020 titled as Dr. Poonam Arya Vs.

Union of India.

5. Learned counsel appearing on behalf of the petitioner had

further submitted that qua the amendment in the Right of Persons

with Disability Act, 1995 and The Indian Medical Council Act,1956

by the Right of Persons with Disability Act, 2016, the medical

council had issued a notification No. MCI-34(41)/2019-

Med./112862 dated 13.05.2019 qua which the person with

disability are eligible to pursue MBBS course.

6. Consequently, learned counsel appearing on behalf of the

petitioner had submitted that the Coordinate Bench of this Court

in Dr. Poonam Arya (supra), vide order dated 24.01.2022,

considering the amended percentage criteria and eligibility qua

person with disability as specified in Appendix-IV under the

notification No. MCI-_18(1)/2018-Med./187262 of Gazette of

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India dated 13.03.2019, issued under Section 33 of the Indian

Medical Council Act, 1956, directed the petitioner as an interim

measure to appear before the SMS Medical College for

consideration of case qua issuance of certificate of disability for

the purpose of admission in Non-Surgical Branch, wherein the

Medical Board found the petitioner eligible to pursue post

graduation, as per amended Rules and Regulations issued by MCI

notification (supra).

6. Learned counsel appearing on behalf of the petitioner had

submitted that, the Coordinate Bench of this Court had further

considered the expert opinion of the Medical Board, wherein it was

stated that the petitioner was suffering from permanent physical

impairment i.e., Locomotor Disability of 45%.

8. Moreover, as per the expert opinion qua physical condition of

the petitioner, the petitioner was found to be fit and well-suited for

pursuing Non-Surgical Branch in Post Graduation Course.

9. Consequently, the Coordinate Bench of this Court, qua the

aforesaid, granted finality to the interim order and permitted the

authorities to consider the case qua petitioner's admission in Post

Graduation Course and granted benefit of physical disability

certificate, as issued by the authorities.

9. In light of the aforesaid, the Coordinate Bench of this Court

vide judgment dated 24.01.2022, granted participation of

petitioner to pursue non-surgical branch and post-graduation in

Psychiatry at Ranchi Medical College.

10. Learned counsel Shri Angad Mirdha, appearing on behalf of

the respondents, had neither refuted the contentions made by the

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petitioner nor the benefit granted qua participation to pursue Non-

Surgical Branch, by the Co-ordinate Bench of this Court, to the

petitioner. Moreover, was unable to apprise the Court qua the fact

whether said order of the Coordinate Bench is put to challenge or

not.

11. Upon a perusal of the record and considering the ratio

encapsulated in the judgment passed by the Co-ordinate Bench of

this Court in Dr. Poonam Arya (supra) has made the following

observations:-

11.1 That the petitioner is suffering from lower and upper limb

disability, however, as per amendment in the guidelines the only

impediment was qua disability in upper arm.

11.2 That as per the notification No.MCI-_18(1)/2018-

Med./187262 dated 13.03.2019 qua locomotor disability

including specified disability, wherein as per the amended

guidelines, the candidate having disability from 40 to 80 percent is

entitled to Person with Disability quota. Appendix IV of the

notification is reiterated below:-

"Guidelines regarding admission of students with "Specified Disabilities" under the Rights of Persons with Disabilities Act, 2016 with respect to admission in Postgraduate Courses in Modern Medicine. Note 1. The "Certificate of Disability" shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 15th June 2017.

2. The extent of "specified disability" in a person shall be assessed in accordance with the "Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of

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Persons with Disabilities Act, 2016 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 4th January 2018.

3. The minimum degree of disability should be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability.

4. The term 'Persons with Disabilities' (PwD) is to be used instead of the term 'Physically Handicapped' (PH).

Sr. Type of Specified Disability Range No Disabilities Disability Eligible for Eligible for Medical Not Disability Type

. Medical Course, Eligible for Eligible Course, PwD for Not Eligible Quota Medical for Course PwD Quota

1. A. a. Leprosy Less than 40-80% disability. More Locomotor cured person* 40% Persons with more than Disability, b. Cerebral disability than 80% 80% including Palsy** disability may also be Specified allowed on case to c. Dwarfism Disabilities case basis (a d. Muscular and their functional to f). Dystrophy competency will be e. Acid attack Physical Disability

determined with the victims aid of f. Others*** assistive devices, if it such as is Amputation, being used, to see if it Poliomyelitis, is etc. brought below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily.

* Attention should be paid to loss of sensations in fingers and hands, amputation, as well as involvement of eyes and corresponding recommendations be looked at. ** Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations be looked at. *** Both hands intact, with intact sensations, sufficient strength and range of motion are

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essential to be considered eligible for medical course.

11.3 That in the instant matter, the petitioner is suffering from 50

percent disability, therefore the petitioner is eligible and fit,

subject to the above said guidelines (Supra) at the time of

admission in Post Graduate Medical College in Non-Surgical

Branch.

11.4 That Medical Board has found the petitioner eligible for

admission in Non-Surgical Branch. Opinion of the Medical Board

dated 21.01.2022 is reiterated as below: -

"1. She has Right Spastic Hemiparesis as a result of Stroke in childhood at the age of 3 months. She is having 45% Permanent Physical Impairment.

2. As per Gazette Notification No. MCI/18(1)/2018-Med/18762 dated 13.03.2019, locomotor disability where both hands are intact with intact sensation, sufficient strength and range of motion are essential to be considered to be eligible for Medical Course.

3. As per Hon'ble Court direction about PG in Non Surgical Branch Admission looking to her capabilities, we are of the opinion that on examination, the candidate has involvement of non dominant right upper and lower limbs and is structurally intact and is partially functional, and is of non progressive nature and may be considered for following Non Surgical Branches."

11.5 That the petitioner has involvement of non-dominant right

upper and lower limbs and is structurally intact and is partially

functional and is of non-progressive nature, that made the

petitioner fit and eligible for Non-Surgical Branch as per expert

opinion of medical board.

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12. This Court considering the medical board opinion and

following the principle of judicial discipline wherein, Co-ordinate

Bench of this Court considering the Appendix IV of the

amended guidelines (Supra) dated 13.03.2019, and

considering the opinion of the Medical Board, had concluded that

the persons with disability between 40 to 80 percent are eligible

for admission in medical college to pursue Post Graduation Course.

Accordingly, this Court deems it apposite to make the following

observations:-

12.1 That as petitioner has already completed the MBBS course

and secured a degree for the same in 13.03.2021, therefore, vide

notification dated 13.05.2019, the petitioner is eligible to pursue

her MBBS course.

12.2 That the petitioner is pursuing PG in MD psychiatry in Ranchi.

13. This Court is mindful towards the efforts and future of the

petitioner and motivated to encourage the person who fall under

the category of persons with disability to pursue their education.

The Court's compassionate stance serves as a beacon of hope for

individuals with disabilities, empowering them to pursue their

educational aspirations. By recognizing the inherent potential

within each individual, regardless of ability, the Court fosters an

inclusive environment conducive to growth. Being aware qua the

fact that education is a fundamental right, essential for unlocking

human potential. This Court's support bridges the gap between

societal barriers and equal opportunities, motivating individuals

with disabilities to strive for academic excellence. This enlightened

approach not only upholds the principles of justice but also

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cultivates a culture of empathy, encouraging society to value