VIDHI HIMMAT KATARIYA AND OTHERS versus THE STATE OF GUJARAT AND OTHERS

[2019] 12 S.C.R. 821

VIDHI HIMMAT KATARIYA AND OTHERS

THE STATE OF GUJARAT AND OTHERS

(Writ Petition (C) No. 885 of 2019)OCTOBER 04, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Education/Educational Institutions:

Admission– Reservation under Persons with Disability(PwD) category – For MBBS course academic year 2019-20 –Petitioners-students denied admission as they were not fulfilling therequisite criteria as per appendix ‘H’ to Notification dated 4.2.2019– Writ petition before Supreme Court seeking direction to treat themeligible for reservation under PwD category and grant admissionin MBBS course – Pleaded that they were not governed byNotification dated 4.2.2019 as the process of selection hadcommenced prior to the date of Notification i.e. on 1.11.2018 –Held: The relevant date for considering the eligibility criteria wouldbe the date on which admission is sought – The Notification wasissued and published prior to date of admission – Therefore, thepetitioners-students would be governed by the Notification –Moreover, when the experts in the field have opined against them,court sitting as an appellate authority against such opinion is notjustified.

Dismissing the writ petitions, the Court

HELD : The essential eligibility criteria as per Appendix‘H’ is required to be considered at the time when the candidateswere seeking admission in the medical course under PwDcategory. Even the candidates seeking admission in PwD quotaare required to appear before the concerned Medical Board atthe time of actually seeking admission and after NEET result isdeclared. Therefore, the relevant date for considering theessential eligibility criteria as per Appendix ‘H’ shall be the dateon which the candidates – petitioners sought admission in theMBBs course under PwD quota. Much prior thereto, notificationdated 4.2.2019 has been issued and published and therefore the

Arespective petitioners shall be governed by notification dated04.02.2019. 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 thepetitioners and their cases are considered in light of the relevantessential eligibility criteria as mentioned in Appendix ‘H’ – ‘BothBhands intact, with intact sensation, sufficient strength and rangeof motion’. Therefore, when the experts in the field have opinedagainst the petitioners, the Court would not be justified in sittingover as an appellate authority against the opinion formed by theexperts, more particularly when there are no allegations of malaCfides. [Paras 7 and 8] [828-G-H; 829-A-D]

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.885 of 2018.

[Under Article 32 of the Constitution of India.]DWith

W.P. (C) No. 900/2019 and 1026/2019.

Govind Jee, Krishna Kumar Singh and Syed Musaib, Advs. forthe Petitioners.

EA.K. Sinha, Sr. Adv., Prashant Singh, Vikas Bansal, Deepak Goel,R. R. Rajesh, Raj Bahadur Yadav, Gaurav Sharma, Dhawal Mohan,Prateek Bhatia, Prassanna Mohan, Aniruddha P. Mayee, A. Rajarajanand Sanjeev Kr. Choudhary, Advs. for the Respondents.

The Judgment of the Court was delivered byFM. R. SHAH, J.

1. In all the writ petitions, the respective petitioners – studentshave prayed for an appropriate writ, order or direction directing therespondents – State Government to treat the petitioners eligible forreservation under Persons with Disability (PwD category) and grantGthem admission in MBBS Course for the academic year 2019-20. Itis the case on behalf of the respective petitioners that all of them areeligible to pursue MBBS Course and they shall be granted admissionunder the PwD category as they are suffering from ‘locomotordisability’. All of them are seeking admission to MBBS Course in theHreserved 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 forcewith effect from 19.04.2017 provides for reservation of not less than5% in government educational institutions. Accordingly, the MedicalCouncil of India notified the Regulations for providing 5% seats tocandidates with benchmark disability in accordance with the provisionsof the 2016 Act. It is the case on behalf of the petitioners that processof admission for MBBS Undergraduate course for the academic year2019-2020 commenced in the last week of October, 2018 and the eligiblecandidates were to submit applications on-line between 01.11.2018 to30.11.2018. That the admit cards were released on 15.04.2019 and theexamination was held on 5.5.2019, followed by declaration of result on5.6.2019. All the respective petitioners appeared in the NEET (UG)2019 and were declared successful. However, it is required to be notedthat in the meantime the Board of Governors in supersession of theMedical Council of India amended the Regulations of Graduate MedicalEducation, 1997, by notification dated 4.2.2019, whereby Appendix ‘H’came to be added to the erstwhile Regulations, 2017 – providing forminimum degree of disability to be 40% (Benchmark Disability) in orderto be eligible for availing reservation for persons with specified disability.Appendix ‘H’ further provided that in case of ‘physical disability orlocomotor disability’, the applicant may be assessed for “Both handsintact, with intact sensation, sufficient strength and range of motion”as essential to be considered eligible for medical course”. As observedhereinabove, thereafter the result of NEET (UG) 2019 came to bepublished in the month of June, 2019. As per the requirement, all therespective petitioners appeared before the Medical Board. However,all the respective petitioners were not fulfilling the requisite criteria asper Appendix ‘H’ to notification dated 04.02.2019 in the list publishedby the State Government on 29.06.2019. The petitioners were declarednon-eligible for medical course. That thereafter the petitioners appearedbefore the Medical Appellate Board and the Medical Appellate Boardalso declared the petitioners not eligible for medical course. Hence, therespective petitioners have preferred the present petitions under Article32 of the Constitution of India for the afore-stated reliefs.

3. Learned Advocate appearing on behalf of the respectivepetitioners have vehemently submitted that the case of the petitionersfor admission in the MBBS Course under the reserved category of PwD

Afor the academic year 2019-20 shall not be governed by notificationdated 04.02.2019, and that they shall be governed by the MCIRegulations, 2017. It is submitted that the relevant date to ascertaineligibility of the petitioners for medical course is to be determined onthe date when the process of selection commenced, i.e., on 01.11.2018.BIt is submitted that on the relevant date MCI Regulations, 2017, dated22.01.2018, were applicable and therefore eligibility, as such, for medicalcourse is to be determined in terms of the provisions of the saidRegulations. It is submitted that Appendix ‘H” to the notificationamending the Regulations, 2017, which came into force with effect from04.02.2019, therefore shall not be applicable.C

3.1 It is further submitted by the learned counsel appearing onbehalf 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 recentdecision of this Court dated 30.05.2019 in Writ Petition (Civil) No. 55Dof 2019, titled Janhit Abhiyan v. Union of India. It is submitted that inthe said decision, this Court has held that the EWS reservations couldnot be made applicable midway after the selection process for medicalPG of 2019, which commenced in the month of November, 2018,whereas notification reserving EWS quota came in February/March,E2019.3.2 It is further submitted by the learned counsel appearing onbehalf of the petitioners that even otherwise the petitioners are eligibleunder Regulations, 2019 also as they fulfil the required percentagedisability between 40-80%. It is submitted that the minimum percentageFdisability to be eligible for availing reservation under PwD is 40%. It issubmitted that “PwD not eligible for medical course” is stated as perthe Regulations, 2019 to be beyond and in excess of 80%, which is notthe case in hand. It is submitted that the relevant provisions ofRegulations, 2019 – “Both hands intact, with intact sensation, sufficientGstrength and range of motion are essential to be considered” has beenapplied by the State Government to non-suit the petitioners for medicalcourse in an arbitrary manner and without application of mind. It issubmitted that while rejecting the petitioners to be not eligible for medicalcourse, the State Government has not at all considered the fact thatHPwD 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 onbehalf of the petitioners that while applying the parameters mentionedin Appendix ‘H’ with clause (f) of Clause 4(1) of Regulations, 2019[Both hands intact, with intact sensation, sufficient strength and rangeof motion are essential to be considered], the State Government didnot consider the facts that, petitioner no.1 has good muscle power, doesgripping and activities of daily living with modifications; petitioner no.3is right side dominant and his right hand is perfectly fine; the range ofmotion in left hand is not nil, rather restricted, does activities of dailyliving with little difficulty and the affected (left) hand has good musclepower as well; petitioner in Writ Petition (C) No. 900 of 2019 is rightside dominant and his right hand is perfectly fine; affected body part isleft hand only. Left hand has good pinch with modification and doesdaily activities with upper limb right side; petitioner in Writ Petition (C)No. 1026 of 2019 is left side dominant and his left hand is perfectlyfine; affected body part is right hand only.

3.4 Making the above submissions, it is prayed to allow thepresent petitions and direct the respondents to consider the case of thepetitioners for admission in MBBS Course in the PwD quota as permerit.

4. The present petitions are vehemently opposed by ShriAniruddha P. Mayee, learned Advocate appearing for the State ofGujarat. It is vehemently submitted by the learned counsel appearingon behalf of the State that the respective petitioners are not fulfillingthe criteria as per notification dated 04.02.2019. It is submitted that thecase of the respective petitioners was considered not only by theMedical Board but by the Medical Appellate Board also and expertshave specifically opined that the respective petitioners are not eligiblefor admission in MBBS course under PwD quota. It is submitted thateven subsequently also the petitioners were examined by the MedicalBoard of AIIMS, New Delhi and even the Medical Board of AIIMShas also opined against the petitioners and has opined that the respectivepetitioners are not eligible for admission in medical course under PwDquota. It is submitted that when the experts have opined that the

Arespective petitioners are not eligible for admission in medical courseas they do not fulfil the requisite eligibility criteria as per Regulations,2019, they are rightly denied admission in medical course under PwDquota.

5. The present petitions are also vehemently opposed by learnedBcounsel appearing on behalf of the Medical Council of India. detailedreply affidavit has been filed on behalf of Board of Governors insupersession of the Medical Council of India. It is submitted that MCIwhile dealing with the issue of persons with disability had formed anindependent Expert Committee comprising of eminent doctors in variousspecialities. It is submitted that the amendments made in the GraduateCMedical Regulations, 1997 vide MCI notification dated 04.02.2019 arein accordance with the report/recommendations furnished by anindependent Expert Committee headed by the Director, AIIMS, NewDelhi.

5.1 It is further submitted by the learned counsel appearing onDbehalf of Board of Governors that medical student pursuing MBBScourse after becoming doctor will be treating humans and it is veryessential that student is able to acquire the necessary skill andexpertise during the MBBS course. It is submitted that Regulation 4(3)has been substituted in the Graduate Medical Education Regulations,E1997 vide MCI notification dated 04.02.2019, whereby it is providedthat 5% of the seats shall be reserved for “persons with benchmarkdisability” as specified under the 2016 Act. It is submitted that thesubstituted Regulation 4(3) further provides that the specified disabilitygiven in the Schedule to 2016 Act is adopted and incorporated inAppendix ‘H’ to the Regulations. It is submitted that it further providesFthat the eligibility of the persons with specified disability to pursue coursein 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 onGbehalf of the Board of Governors that Appendix ‘H’ in the MCInotification dated 04.02.2019, inter alia, provides that the persons withlocomotor disability of less than 40% are eligible to pursue MBBS coursebut are not eligible to be granted the benefit of reservation under PwDquota. It is submitted therefore that when the respective petitionersHdo 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, NewDelhi have opined that the respective petitioners are not eligible foradmission in MBBS course, the respective petitioners are rightly deniedadmission in the MBBS course under PwD quota.

5.3 Now so far as the submission on behalf of the petitionersthat notification dated 04.02.2019 shall not be applicable and theerstwhile Regulations shall be applicable and the relevant date shouldbe the date on which the process for admission has started, i.e., in themonth of November, 2018, it is vehemently submitted that the relevantdate for eligibility criteria would be the date on which the petitionerswere to get admission. It is submitted therefore that the date on whichthe petitioners applied for admission in medical course under PwD quotaand appeared before the Medical Board, that should be the relevantdate and the notification came into force on 04.02.2019, the same shallbe applicable.

5.4 Making the above submissions, it is prayed to dismiss thepresent writ petitions.

6. We have heard the learned counsel for the respective partiesat length.

6.1 The respective petitioners are suffering from locomotordisability and they are seeking admission in the MBBS course underPwD 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, acandidate suffering from locomotor disability of less than 40% shall beeligible to pursue MBBS course but not eligible to be granted the benefitof reservation under PwD quota. It further provides that ‘both handsintact, with intact sensation, sufficient strength and range of motion’are essential to be considered eligible for medical course. As per theopinion of the Medical Board, Medical Appellate Board and even theMedical Board of AIIMS, New Delhi, the respective petitioners arenot eligible for admission in MBBS course under PwD quota as theydo not fulfil the essential criteria to be fulfilled as per Appendix ‘H’.Therefore, as such, the respective petitioners are not fulfilling theessential eligibility criteria provided as per Appendix ‘H’ and thereforethey are not eligible for admission in the medical course under PwDquota.

A7. It is mainly contended on behalf of the petitioners and it issubmitted by the learned counsel appearing on behalf of the petitionersthat the NEET UG 2019 brochure was released on 01.11.2018 and thenotification amending Regulations, 1997 whereby Appendix ‘H’ is addedto the erstwhile Regulations, 2017 has been issued on 04.02.2019, thecase of the petitioners are required to be considered as per theBprovisions prior to 04.02.2019 and more particularly prevailing as on01.11.2018. The aforesaid has no substance. The relevant essentialeligibility criteria is required to be considered when the petitioners wereto get admission in the MBBS course under PwD quota. It is requiredto be noted and so stated in the reply affidavit filed on behalf of theCMCI that the Expert Committee submitted the report – “Guidelines foradmission of persons with Specified Disabilities”, which was placedbefore the Executive Committee of the Council in its meeting held on5.6.2018 wherein after due discussion and deliberations it was decided

to approve the same. It was also decided that the said ExpertDCommittee Report should be communicated to the Ministry of Health& Family Welfare in view of the schedule for counselling for admissionto MBBS course for the academic year 2018-19. However, foradmission for the academic year 2018-19, it was at the stage of draftnotification and the Graduate Medical Education Regulations, 1997 werenot amended in light of the recommendations of the Expert CommitteeEconstituted by the MCI which has issued the Disability Guidelines, thisCourt directed to give admission as per the unamended GraduateMedical Education Regulations, 1997. However subsequently andbefore the admission for the academic year 2019-20 are given,notification dated 04.02.2019 has been published and the GraduateFMedical Education Regulations, 1997 have been amended, as above.Therefore, in the facts and circumstances of the case, it cannot be saidthat ‘Rules of the game are changed midway’, as sought to becontended on behalf of the petitioners. As observed hereinabove, theessential eligibility criteria as per Appendix ‘H’ is required to beconsidered at the time when the candidates were seeking admission inGthe medical course under PwD category. It is also required to be notedthat even the candidates seeking admission in PwD quota are requiredto appear before the concerned Medical Board at the time of actuallyseeking admission and after NEET result is declared. Therefore, therelevant date for considering the essential eligibility criteria as perHAppendix ‘H’ shall be the date on which the candidates – petitionerssought admission in the MBBs course under PwD quota. Much priorthereto, notification dated 4.2.2019 has been issued and published andtherefore the respective petitioners shall be governed by notificationdated 04.02.2019.

8. Now so far as the submission on behalf of the petitioners thatwhile denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and havenot considered that the respective petitioners are able to perform wellis concerned, it is required to be noted that in the present case all theexpert bodies including the Medical Board, Medical Appellate Boardand even the Medical Board of AIIMS, New Delhi consisting of theexperts have opined against the petitioners and their cases areconsidered in light of the relevant essential eligibility criteria asmentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation,sufficient strength and range of motion’. Therefore, when the expertsin the field have opined against the petitioners, the Court would not bejustified in sitting over as an appellate authority against the opinionformed by the experts – in the present case, the Medical Board, MedicalAppellate Board and the Medical Board of AIIMS, New Delhi, moreparticularly when there are no allegations of mala fides.

9. In view of the above and for the reasons stated above, thepresent petitioners are not entitled to the reliefs as prayed. Hence, allthe writ petitions filed under Article 32 of the Constitution of Indiadeserve to be dismissed and are accordingly dismissed. However, inthe facts and circumstances of the case, there shall be no order as tocosts.

Kalpana K. Tripathy

Petitions dismissed