Albin Joseph v. Commissioner for Entrance Examinations, National Testing Agency, State of Kerala and Addl. Director of Medical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **WP(C).No.16743 of 2019** ## **PETITIONER:** **ALBIN JOSEPH AGED 18 YEARS S/O. SHAJI VARGHESE, AMBATTUKUZHIYIL HOUSE, MUVATTUPUZHA, EAST MARADY P.O, ERNAKULAM, KERALA-686 673** **BY ADVS.** **SRI.MATHEW A KUZHALANADAN KUM.APARNA SATHIANATHAN SMT.ANITHA MATHAI MUTHIRENTHY SRI.SUDEEP ARAVIND PANICKER SRI.V.SHYAMOHAN** ## **RESPONDENTS:** **1 COMMISSIONER FOR ENTRANCE EXAMINATIONS HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, KERALA-695 001 2 NATIONAL TESTING AGENCY, REPRESENTED BY THE CHAIRPERSON, C-20, 1A/8, SECTOR 62, IITK OUTREACH CENTRE, NOIDA-201309. 3 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM, KERALA-695 001** **ADDL. THE DIRECTOR OF MEDICAL EDUCATIONS, R4 THIRUVANANTHAPURAM ADDL.R4 IS SUO MOTU IMPEADED AS PER THE ORDER DATED 25.6.2019 BY ADVS. SRI.NIRMAL. S, SC, NATIONAL TESTING AGENCY SRI.MANU.V, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.16743 of 2019 2 ## **JUDGMENT** Petitioner, a differently abled student aged 18 years has filed this writ petition claiming admission to MBBS under the quota earmarked for differently abled persons. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner is suffering from MeningoMyclac (Post Surgical) with Paraplegia and hence has locomotive disability of the lower limbs to the extent of 60%. It is pointed out that, petitioner has passed the higher secondary examination, 2019 with an aggregate of 85% in the science stream. Petitioner appeared for National Eligibility cum Entrance Test (NEET) UG - 2019 for admission to MBBS and allied courses and has obtained 58.76 percentile. Accordingly petitioner applied for allotment of seats to Medical and allied courses to the 1[st] respondent as per application dated 11.2.2019. 3. According to the petitioner, as per regulation 4(3) of the Regulation on Graduate Medical Education, 1997 as amended in 2019, petitioner is entitled to WP(C).No.16743 of 2019 3 apply under the PWD quota since he suffers from bench mark disability. Accordingly, as per a notice dated 22.5.2019, 1[st] respondent directed the petitioner to appear before the State Level Committee to examine the candidate with physical disability, for admission to professional degree course at the Government Medical College, Thiruvananthapuram on 29.5.2019. Thereupon, petitioner appeared before the State Level Committee with required documents. However, thereafter petitioner has not received any communication from the 1[st] respondent regarding the process of allotment. But from the web portal of the 1[st] respondent it is known that, the application of the petitioner is rejected. It was thereupon that, petitioner has approached this court seeking the following releifs: - i) To call for records pertaining to the Application No.1148053 of the petitioner and also all records pertaining to the medical examination conducted by the state level committee pursuant to Ext.P3. - ii) To declare that the petitioner is entitled to be considered under PWD quota for admission to medical courses as per the Graduate Medical Education Regulation of 1997. WP(C).No.16743 of 2019 4 iii) To issue a writ, direction or order to the first respondent to accept the application of the petitioner _vide_ Application No.1148053 and allow him to participate in counselling for allotment of seats for medical and allied courses, under the PWD reservation. iv) Issue such other writ, direction or order that this Hon'ble Court may deem fit, just and necessary in the facts and circumstances of the case. 4. A detailed counter affidavit and an additional counter affidavit are filed for and on behalf of the 1[st] respondent. It is stated thereunder that, the entrance examinations/allotments/admission to various professional degree courses are being done as per the prospectus for admission to Kerala Engineering, Architect and Medical Courses (KEAM Prospectus) - 2019) approved by the Government as per notification dated 2.1.2019. Clause 5.3 of the Prospectus for KEAM - 2019 deals with rules relating to the reservation for Persons with Disabilities, as per which, 5% of the seats available to the State for allotment from the State rank lists are reserved for candidates with benchmark disabilities for all courses in Government/Aided Colleges as stipulated under section WP(C).No.16743 of 2019 5 32, Chapter VI of the Persons with Disabilities Act, 2016. As per Clause 2(r), Chapter 1 of the Act, 2016, person with bench mark disability means person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. So also, generally, candidates who have a minimum of 40% disability alone will be eligible to apply for this quota and the candidates seeking admission to medical course except BHMS will have to satisfy the eligibility criteria prescribed by the Medical Council of India for Persons with Disabilities. It was specifically pointed out in the prospectus that subsequent changes, if any, made in the draft notification by the Medical Council of India will be applicable to the above criteria. It is also stipulated thereunder that, Blind (including colour blind), deaf and/dumb candidates shall not be eligible for admission to the BHMS course as per Central Council of Homoeopathy guidelines. Among other WP(C).No.16743 of 2019 6 stipulations, a candidate claiming reservation under the category, the certificate of disability from the District Medical Board certifying the percentage of degree of disability has to be produced before the State Level Committee at the time of medical verification and it was specifically provided thereunder that, the certificate of disability from the District Medical Board must be provided at the time of medical verification and no document/certificate is to be uploaded to the online application. Taking into account all the above specified aspects, the Commissioner of Entrance Examination will publish the merit list of such candidates included in the category,however, the inclusion in the rank list is strictly provisional. 5. So also in order to deal with such situation, a State Level Committee is to be constituted by the Government under the Chairmanship of the Commissioner of Entrance Examination consisting of medical experts in General Medicine, ENT, Neurology, Orthopaedic Surgery, Opthalmology, Phychiary and Physical Medicine & Rehabilitation will examine and assess the degree of WP(C).No.16743 of 2019 7 disability of the candidates, who are provisionally included under the category. The State Level Committee so constituted is conferred with powers to review the certificate issued by the District Medical Board. That apart there will be special invitees representing various disciplines in addition to medical experts, who will subsequently determine the suitability of a candidate having minimum 40% disability for a particular course and only those candidates who are having a minimum 40% disability and are found to be physically suitable by the committee in the courses will be chosen for a course as only the physically fit can undergo the rigours of a professional course. 6. The recommendations of the State Level Committee is binding on the candidates and the selection of the candidates under the category will be based on the merit in the entrance examination and physical suitability and not on the basis of the degree of disability. However, candidates will have to qualify NEET (UG) - 2019 as per the qualifying criteria prescribed for the courses. The eligibility criteria prepared on the basis of the draft guidelines WP(C).No.16743 of 2019 8 prescribed by the MCI appended to the KEAM prospectus is produced as Ext.R1(a). 7. It is also pointed out that, the draft guidelines with changes, transformed into subordinate legislation on the same being published as Appendix H to Graduate Medical Education (GME) Regulations by way of notification dated 4.2.2019, evident from Ext.R1(b) and the same was further amended as per Ext.R1(c) notification whereby amended Appendix H-1 was incorporated to the GME regulations. Therefore, according to the respondents, in accordance with the amended guidelines, the application submitted by the petitioner was considered and the medical verification of the petitioner was conducted as per the guidelines. It is clearly specified that, the candidates who have disability of more than 80% are not eligible for medical courses and has also been specified that, the Medical Board examining the candidate must pay attention to the loss of sensation in the finger, hands and diagnose whether both hands are intact with intact sensations, sufficient strength and range of motion essential to be considered eligible for medical WP(C).No.16743 of 2019 9 courses. That apart it is pointed out that as per Ext.R1(a) eligibility criteria appended to the KEAM prospectus and Ext.R1(c) amended Appendix - H1 mandates determination as to whether a candidate even with locomotive disability above 80% is functionally competent with the aid of assistive devices. Therefore, in accordance with the criteria, the disability range of the candidate as also whether the disability could be brought down with assistive devices were also verified and the Medical Board were of the unanimous opinion that, the disability of the petitioner was 85% and that he is not suitable for admission to the MBBS/BDS and other allied courses. Petitioner was also examined by the experts as is provided under the prospectus for suitability to various courses applied by him and found to be not suitable for admission to the courses applied and not eligible for the seats earmarked for Persons with Disabilities for MBBS/BDS courses as the disability range was 85%. It was thereupon that, the application submitted by the petitioner was not proceeded further. The verification report is produced as Ext.R1(d). WP(C).No.16743 of 2019 10 Therefore, according to the respondent, there is no manner of illegality, arbitrariness or unfairness on the part of respondents in not considering the application submitted by the petitioner for admission in the quota of Persons with Disabilities. 8. A reply affidavit is also filed by the petitioner reiterating the stand adopted in the writ petition and raising various contentions on the basis of the amendments made to the Regulations in question produced as Ext.R1(b) and Ext.R1(c). 9. I have heard learned counsel for petitioner, Sri.Mathew Kuzhalnadan, learned Senior Government Pleader, Sri.V.Manu for respondents and perused the pleadings and documents on record. 10. When the matter came-up for admission, an order was passed by this court on 25.6.2019 directing the additional 4[th] respondent i.e., the Director of Medical Education, Thiruvananthapuram to constitute a Medical Board with members other than the members contained under Ext.R1(d), at the earliest and conduct the medical examination in terms of the amended WP(C).No.16743 of 2019 11 Medical Council Regulations viz., Appendix H and Appendix H-1 produced, since it was found that, in the medical report, there was overwriting with respect to the extent of disability in two places, produced as Ext.R1(a). 11. Anyhow a new medical Board was constituted and the petitioner was examined again by the Medical Board and has drawn Ext.R1(e) report produced along with additional counter affidavit filed for and on behalf of the 1[st] respondent. On the basis of the report so drawn by the new Medical Board, Commissioner of Entrance Examinations was directed as per an order dated 3.7.2019 to take a decision in the issue taking into account the report of the Medical Board and in accordance with law. Thereafter, the authority has taken a decision, not to grant admission to the petitioner in the quota, which was informed to this court by the learned Senior Government Pleader on 8.7.2019 and the copy of the order is produced as Ext.R1(f) along with the additional counter affidavit. Copy of the said order is handed over to the learned counsel appearing for the petitioner also. WP(C).No.16743 of 2019 12 12. The thrust of the contention advanced by learned counsel for petitioner is that, the amended Regulations of the MCI cannot be taken into account for the purpose of considering the application submitted by the petitioner since the amendments were made subsequent to the prospectus issued and the application submitted by the petitioner. However, it is clear from the prospectus that, such an eventuality was cautioned by the respondent in the prospectus itself by making it clear that any amendments made consequent to the draft amendments made by the MCI will apply to the applicants. Therefore, such a contention advanced cannot stand the test of law. 13. Learned counsel has also submitted that, going by Ext.R1(e) report of the Medical Board drawn on the basis of the interim order passed by this court, it is clear that, the percentage of disability of the petitioner is found to be 80% and therefore, in view of Appendix - H(1) petitioner is entitled to get admission in the quota earmarked. As per Appendix - H(1), it is made clear that, a candidate is eligible for medical course under PWD quota, if the disability WP(C).No.16743 of 2019 13 is between 40% to 80% and it is further stipulated thereunder that persons with more than 80% disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices to see if the disability can be brought down below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily. According to the learned counsel for petitioner, since disability is found to be 80%, petitioner is entitled as of right to secure admission under the quota and the only aspect that need be looked into is, whether both hands are intact with intact sensation and sufficient strength and range of motion are available to the petitioner. 14. However, learned Senior Government Pleader on the other hand submitted that, even if disability is 80%, still power is vested with the authority to consider the suitability of the candidate in accordance with Appendix H-1 and it was accordingly that, a decision was taken, as per Annexure R1(f), that petitioner is not entitled for admission. Therefore, consequent to the serious disability of the WP(C).No.16743 of 2019 14 petitioner, it will be difficult for him to pursue and complete the course satisfactorily and such a decision was taken in accordance with the stipulations contained under Appendix H-1 of the Graduate Medical Education Regulations as amended by Amendment Act, 2019, by the experts who are specially invited in terms of the agreement. 15. Learned Senior Government Pleader has invited my attention to a Division Bench judgment of this court in **Aswathy P. v. State of Kerala and others** _[2011 KHC 2364],_ wherein one of the issues considered was, whether the Government has power to constitute more than one medical authority to consider the disability suffered by a candidate and held that, the State is at liberty to constitute a body to cross check the correctness of the certificate issued by the Medical Board constituted under the Rules or otherwise to independently examine the disability of a candidate seeking anyone of the benefits contemplated under the Act. Applying the principles so laid down, there is nothing wrong in constituting a committee for assessing the disability and that too in accordance WP(C).No.16743 of 2019 15 with the stipulations contained in the prospectus. Moreover, it is well settled in law that, having participated in the selection process in accordance with the stipulations contained in the prospectus, petitioner is not at liberty to attack the same, especially when they are in accordance with law. Therefore, even if the petitioner has produced a medical certificate showing the disability as 65%, there was nothing standing in the way of conducting medical examination in accordance with the stipulations contained under the prospectus and arrive at a safe and just conclusion. 16. Learned counsel for petitioner has invited my attention to judgment of the Apex Court in **Purswani v. Union of India and others** _[AIR 2018 SC 3999],_ wherein directions were issued to provide admission to a blind student taking into account the fact that there was no prohibition created under the Regulations made by the MCI to provide admission to such a student. However, fact remains, MCI has carried out amendment to the Regulations to tide over such situations and has incorporated Annexure H-1 to the Regulations WP(C).No.16743 of 2019 16 enabling the authorities also to assess the suitability of candidates. 17. In my considered view, the authority have taken into account all the relevant aspects and arrived at the decision that, petitioner is not medically fit enough to undertake MBBS course, and therefore it may not be proper on the part of this court to sit over the findings rendered by the Medical Board, the experts, as well as the statutory authority, in order to arrive at a different conclusion. Taking into account all these aspects, I am of the considered opinion that, petitioner has not made out any case justifying interference of this court under Article 226 of the Constitution of India, there being no manifest error in justice or arbitrariness, illegality or _malafides_ in the decision taken. Resultantly writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** Smv 22.7.2019 WP(C).No.16743 of 2019 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE GOVERNMENT HOSPITAL, MUVATTUPUZHA, DATED 08.06.2016.** - **EXHIBIT P2 TRUE COPY OF THE SCORE SHEET OF NEET ISSUED BY NATIONAL TESTING AGENCY DECLARED ON 05.06.2019.** - **EXHIBIT P3 TRUE COPY OF NOTICE SEND BY THE FIRST RESPONDENT TO THE PETITIONER DATED 22.05.2019.** - **EXHIBIT P4 TRUE COPY OF SCREENSHOT OF WEBSITE OF THE FIRST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORDING DATED 24/12/2001** - **EXHIBIT P6 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 10/02/2010** - **EXHIBIT P7 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 10/04/2013** - **EXHIBIT P8 TRUE COPY OF THE RECOMMENDATION ISSUED BY THE DIRECTORATE OF HIGHER SECONDARY EDUCATION DATED 18/05/2017** ## **RESPONDENT'S EXHIBITS:** ## **EXHIBIT R1(a)** - **TRUE COPY OF THE ELIGIBILITY CRITERIA, PREPARED ON THE BASIS OF THE DRAFT GUIDELINES PRESCRIBED BY THE MEDICAL COUNCIL OF INDIA (MCI), APPENDED TO THE KEAM PROSPECTUS-2019** **EXHIBIT R1(b) TRUE PHOTOCOPY OF THE NOTIFICATION NO. MCI-34(41)/2018-MED/170045.** **EXHIBIT R1(c) TRUE PHOTOCOPY OF THE NOTIFICATION NO. MCI-34(41)/2018 -MED/112862.** WP(C).No.16743 of 2019 18 **EXHIBIT R1(d)** **TRUE PHOTOCOPY OF THE VERIFICATION REPORT DATED 29-05-2019 PERTAINING TO THE PETITIONER** **EXHIBIT R1(e) TRUE PHOTOCOPY OF THE RE-VERIFICATION REPORT DATED 28.06.2019 PERTAINING TO THE PETITIONER** **EXHIBIT R1(f) TRUE PHOTOCOPY OF THE ORDER NO.A2/2627/2019/CEE DATED 6.7.2019 OF THE 1ST RESPONDENT.**