Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 885/2019
Vidhi Himmat Katariya and others ..Petitioners
Versus
The State of Gujarat and others ..Respondents
WITH
WRIT PETITION(C) NO. 900/2019
WRIT PETITION(C) NO. 1026/2019
J U D G M E N T
M.R. SHAH, J.
In all the writ petitions, the respective petitioners – students
have prayed for an appropriate writ, order or direction directing
1
the respondents – State Government to treat the petitioners
eligible for reservation under Persons with Disability (PwD
category) and grant them admission in MBBS Course for the
academic year 201920. It is the case on behalf of the respective
petitioners that all of them are eligible to pursue MBBS Course
and they shall be granted admission under the PwD category as
they are suffering from ‘locomotor disability’. All of them are
seeking admission to MBBS Course in the reserved category
under PwD quota.
2. That Section 32 of the Right of Persons with Disabilities Act,
2016 (hereinafter referred to as the ‘2016 Act’), which came into
force with effect from 19.04.2017 provides for reservation of not
less than 5% in government educational institutions.
Accordingly, the Medical Council of India notified the Regulations
for providing 5% seats to candidates with benchmark disability in
accordance with the provisions of the 2016 Act. It is the case on
behalf of the petitioners that process of admission for MBBS
Undergraduate course for the academic year 20192020
commenced in the last week of October, 2018 and the eligible
candidates were to submit applications online between
2
01.11.2018 to 30.11.2018. That the admit cards were released
on 15.04.2019 and the examination was held on 5.5.2019,
followed by declaration of result on 5.6.2019. All the respective
petitioners appeared in the NEET (UG) 2019 and were declared
successful. However, it is required to be noted that in the
meantime the Board of Governors in supersession of the Medical
Council of India amended the Regulations of Graduate Medical
Education, 1997, by notification dated 4.2.2019, whereby
Appendix ‘H’ came to be added to the erstwhile Regulations, 2017
– providing for minimum degree of disability to be 40%
(Benchmark Disability) in order to be eligible for availing
reservation for persons with specified disability. Appendix ‘H’
further provided that in case of ‘physical disability or locomotor
disability’, the applicant may be assessed for “Both hands intact,
with intact sensation, sufficient strength and range of motion” as
essential to be considered eligible for medical course”. As
observed hereinabove, thereafter the result of NEET (UG) 2019
came to be published in the month of June, 2019. As per the
requirement, all the respective petitioners appeared before the
Medical Board. However, all the respective petitioners were not
fulfilling the requisite criteria as per Appendix ‘H’ to notification
3
dated 04.02.2019 in the list published by the State Government
on 29.06.2019. The petitioners were declared noneligible for
medical course. That thereafter the petitioners appeared before
the Medical Appellate Board and the Medical Appellate Board
also declared the petitioners not eligible for medical course.
Hence, the respective petitioners have preferred the present
petitions under Article 32 of the Constitution of India for the
aforestated reliefs.
3. Learned Advocate appearing on behalf of the respective
petitioners have vehemently submitted that the case of the
petitioners for admission in the MBBS Course under the reserved
category of PwD for the academic year 201920 shall not be
governed by notification dated 04.02.2019, and that they shall be
governed by the MCI Regulations, 2017. It is submitted that the
relevant date to ascertain eligibility of the petitioners for medical
course is to be determined on the date when the process of
selection commenced, i.e., on 01.11.2018. It is submitted that
on the relevant date MCI Regulations, 2017, dated 22.01.2018,
were applicable and therefore eligibility, as such, for medical
course is to be determined in terms of the provisions of the said
4
Regulations. It is submitted that Appendix ‘H” to the notification
amending the Regulations, 2017, which came into force with
effect from 04.02.2019, therefore shall not be applicable.
3.1 It is further submitted by the learned counsel appearing on
behalf of the petitioners that rules of game cannot be changed
midway, as per the settled proposition of law. In support of his
above submission, learned counsel for the petitioners has heavily
relied upon the recent decision of this Court dated 30.05.2019 in
Writ Petition (Civil) No. 55 of 2019, titled Janhit Abhiyan v. Union
of India. It is submitted that in the said decision, this Court has
held that the EWS reservations could not be made applicable
midway after the selection process for medical PG of 2019, which
commenced in the month of November, 2018, whereas
notification reserving EWS quota came in February/March, 2019.
3.2 It is further submitted by the learned counsel appearing on
behalf of the petitioners that even otherwise the petitioners are
eligible under Regulations, 2019 also as they fulfil the required
percentage disability between 4080%. It is submitted that the
minimum percentage disability to be eligible for availing
reservation under PwD is 40%. It is submitted that “PwD not
5
eligible for medical course” is stated as per the Regulations, 2019
to be beyond and in excess of 80%, which is not the case in
hand. It is submitted that the relevant provisions of Regulations,
2019 – “Both hands intact, with intact sensation, sufficient
strength and range of motion are essential to be considered” has
been applied by the State Government to nonsuit the petitioners
for medical course in an arbitrary manner and without
application of mind. It is submitted that while rejecting the
petitioners to be not eligible for medical course, the State
Government has not at all considered the fact that PwD is bound
to have certain problems including the parameters mentioned in
Appendix ‘H’ [Both hands intact, with intact sensation, sufficient
strength and range of motion are essential to be considered] with
clause (f) of Clause 4(1) of the Regulations, 2019.
3.3 It is further submitted by the learned counsel appearing on
behalf of the petitioners that while applying the parameters
mentioned in Appendix ‘H’ with clause (f) of Clause 4(1) of
Regulations, 2019 [Both hands intact, with intact sensation,
sufficient strength and range of motion are essential to be
considered], the State Government did not consider the facts
6
that, petitioner no.1 has good muscle power, does gripping and
activities of daily living with modifications; petitioner no.3 is right
side dominant and his right hand is perfectly fine; the range of
motion in left hand is not nil, rather restricted, does activities of
daily living with little difficulty and the affected (left) hand has
good muscle power as well; petitioner in Writ Petition (C) No. 900
of 2019 is right side dominant and his right hand is perfectly
fine; affected body part is left hand only. Left hand has good
pinch with modification and does daily activities with upper limb
right side; petitioner in Writ Petition (C) No. 1026 of 2019 is left
side dominant and his left hand is perfectly fine; affected body
part is right hand only.
3.4 Making the above submissions, it is prayed to allow the
present petitions and direct the respondents to consider the case
of the petitioners for admission in MBBS Course in the PwD
quota as per merit.
4. The present petitions are vehemently opposed by Shri
Aniruddha P. Mayee, learned Advocate appearing for the State of
Gujarat. It is vehemently submitted by the learned counsel
appearing on behalf of the State that the respective petitioners
7
are not fulfilling the criteria as per notification dated 04.02.2019.
It is submitted that the case of the respective petitioners was
considered not only by the Medical Board but by the Medical
Appellate Board also and experts have specifically opined that the
respective petitioners are not eligible for admission in MBBS
course under PwD quota. It is submitted that even subsequently
also the petitioners were examined by the Medical Board of
AIIMS, New Delhi and even the Medical Board of AIIMS has also
opined against the petitioners and has opined that the respective
petitioners are not eligible for admission in medical course under
PwD quota. It is submitted that when the experts have opined
that the respective petitioners are not eligible for admission in
medical course as they do not fulfil the requisite eligibility criteria
as per Regulations, 2019, they are rightly denied admission in
medical course under PwD quota.
5. The present petitions are also vehemently opposed by
learned counsel appearing on behalf of the Medical Council of
India. A detailed reply affidavit has been filed on behalf of Board
of Governors in supersession of the Medical Council of India. It is
submitted that MCI while dealing with the issue of persons with
8
disability had formed an independent Expert Committee
comprising of eminent doctors in various specialities. It is
submitted that the amendments made in the Graduate Medical
Regulations, 1997 vide MCI notification dated 04.02.2019 are in
accordance with the report/recommendations furnished by an
independent Expert Committee headed by the Director, AIIMS,
New Delhi.
5.1 It is further submitted by the learned counsel appearing on
behalf of Board of Governors that a medical student pursuing
MBBS course after becoming a doctor will be treating humans
and it is very essential that a student is able to acquire the
necessary skill and expertise during the MBBS course. It is
submitted that Regulation 4(3) has been substituted in the
Graduate Medical Education Regulations, 1997 vide MCI
notification dated 04.02.2019, whereby it is provided that 5% of
the seats shall be reserved for “persons with benchmark
disability” as specified under the 2016 Act. It is submitted that
the substituted Regulation 4(3) further provides that the specified
disability given in the Schedule to 2016 Act is adopted and
incorporated in Appendix ‘H’ to the Regulations. It is submitted
9
that it further provides that the eligibility of the persons with
specified disability to pursue course in medicine has to be dealt
with in accordance with Appendix ‘H’ – Guidelines regarding
admission of students with “Specified Disabilities” under the
2016 Act with respect to admission in MBBS course.
5.2 It is further submitted by the learned counsel appearing on
behalf of the Board of Governors that Appendix ‘H’ in the MCI
notification dated 04.02.2019, inter alia, provides that the
persons with locomotor disability of less than 40% are eligible to
pursue MBBS course but are not eligible to be granted the benefit
of reservation under PwD quota. It is submitted therefore that
when the respective petitioners do not fulfil the admission criteria
as per Appendix ‘H’ to notification dated 04.02.2019 and even all
the expert bodies – Medical Board, Medical Appellate Board and
even the Medical Board of AIIMS, New Delhi have opined that the
respective petitioners are not eligible for admission in MBBS
course, the respective petitioners are rightly denied admission in
the MBBS course under PwD quota.
5.3 Now so far as the submission on behalf of the petitioners
that notification dated 04.02.2019 shall not be applicable and the
10
erstwhile Regulations shall be applicable and the relevant date
should be the date on which the process for admission has
started, i.e., in the month of November, 2018, it is vehemently
submitted that the relevant date for eligibility criteria would be
the date on which the petitioners were to get admission. It is
submitted therefore that the date on which the petitioners
applied for admission in medical course under PwD quota and
appeared before the Medical Board, that should be the relevant
date and the notification came into force on 04.02.2019, the
same shall be applicable.
5.4 Making the above submissions, it is prayed to dismiss the
present writ petitions.
6. We have heard the learned counsel for the respective parties
at length.
6.1 The respective petitioners are suffering from locomotor
disability and they are seeking admission in the MBBS course
under PwD category. As per notification dated 04.02.2019 and
Appendix ‘H’ – Guidelines regarding admission of students with
‘Specified Disabilities’ under the 2016 Act with respect to
admission in MBBS course, a candidate suffering from locomotor
11
disability of less than 40% shall be eligible to pursue MBBS
course but not eligible to be granted the benefit of reservation
under PwD quota. It further provides that ‘both hands intact,
with intact sensation, sufficient strength and range of motion’ are
essential to be considered eligible for medical course. As per the
opinion of the Medical Board, Medical Appellate Board and even
the Medical Board of AIIMS, New Delhi, the respective petitioners
are not eligible for admission in MBBS course under PwD quota
as they do not fulfil the essential criteria to be fulfilled as per
Appendix ‘H’. Therefore, as such, the respective petitioners are
not fulfilling the essential eligibility criteria provided as per
Appendix ‘H’ and therefore they are not eligible for admission in
the medical course under PwD quota.
7. It is mainly contended on behalf of the petitioners and it is
submitted by the learned counsel appearing on behalf of the
petitioners that the NEET UG 2019 brochure was released on
01.11.2018 and the notification amending Regulations, 1997
whereby Appendix ‘H’ is added to the erstwhile Regulations, 2017
has been issued on 04.02.2019, the case of the petitioners are
required to be considered as per the provisions prior to
12
04.02.2019 and more particularly prevailing as on 01.11.2018.
The aforesaid has no substance. The relevant essential eligibility
criteria is required to be considered when the petitioners were to
get admission in the MBBS course under PwD quota. It is
required to be noted and so stated in the reply affidavit filed on
behalf of the MCI that the Expert Committee submitted the report
– “Guidelines for admission of persons with Specified
Disabilities”, which was placed before the Executive Committee of
the Council in its meeting held on 5.6.2018 wherein after due
discussion and deliberations it was decided to approve the same.
It was also decided that the said Expert Committee Report should
be communicated to the Ministry of Health & Family Welfare in
view of the schedule for counselling for admission to MBBS
course for the academic year 201819. However, for admission
for the academic year 201819, it was at the stage of a draft
notification and the Graduate Medical Education Regulations,
1997 were not amended in light of the recommendations of the
Expert Committee constituted by the MCI which has issued the
Disability Guidelines, this Court directed to give admission as per
the unamended Graduate Medical Education Regulations, 1997.
However subsequently and before the admission for the academic
13
year 201920 are given, notification dated 04.02.2019 has been
published and the Graduate Medical Education Regulations,
1997 have been amended, as above. Therefore, in the facts and
circumstances of the case, it cannot be said that ‘Rules of the
game are changed midway’, as sought to be contended on behalf
of the petitioners. As observed hereinabove, the essential
eligibility criteria as per Appendix ‘H’ is required to be considered
at the time when the candidates were seeking admission in the
medical course under PwD category. It is also required to be
noted that even the candidates seeking admission in PwD quota
are required to appear before the concerned Medical Board at the
time of actually seeking admission and after NEET result is
declared. Therefore, the relevant date for considering the
essential eligibility criteria as per Appendix ‘H’ shall be the date
on which the candidates – petitioners sought admission in the
MBBs course under PwD quota. Much prior thereto, notification
dated 4.2.2019 has been issued and published and therefore the
respective petitioners shall be governed by notification dated
04.02.2019.
14
8. Now so far as the submission on behalf of the petitioners
that while denying admission to the petitioners the State
Government and/or authorities have not considered the relevant
parameters and have not considered that the respective
petitioners are able to perform well is concerned, it is required to
be noted that in the present case all the expert bodies including
the Medical Board, Medical Appellate Board and even the Medical
Board of AIIMS, New Delhi consisting of the experts have opined
against the petitioners and their cases are considered in light of
the relevant essential eligibility criteria as mentioned in Appendix
‘H’ – ‘Both hands intact, with intact sensation, sufficient strength
and range of motion’. Therefore, when the experts in the field
have opined against the petitioners, the Court would not be
justified in sitting over as an appellate authority against the
opinion formed by the experts – in the present case, the Medical
Board, Medical Appellate Board and the Medical Board of AIIMS,
New Delhi, more particularly when there are no allegations of
mala fides.
9. In view of the above and for the reasons stated above, the
present petitioners are not entitled to the reliefs as prayed.
15
Hence, all the writ petitions filed under Article 32 of the
Constitution of India deserve to be dismissed and are accordingly
dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
……………………………………..J.
[ARUN MISHRA]
…………………………………….J.
[M.R. SHAH]
NEW DELHI; …………………………………….J.
October 04, 2019 [B.R. GAVAI]
16