Anamika v. State Commissioner for Persons with Disabilities & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** **WP(C) NO. 39224 OF 2022** ## **PETITIONER/S:** ANAMIKA AGED 18 YEARS D/O SUBASH KUMAR, VALIYIL HOUSE, PUTHUR, PUTHIYANGADI P.O., KOZHIKODE - 682024 BY ADV P.M.UNNI NAMBOODIRI ## **RESPONDENTS:** 1 THE STATE COMMISSIONER, STATE COMMISSIONERATE FOR PERSONS DISABILITIES,ANJANEYA, T. C. -9/1023(1), GROUND FLOOR,SASTHAMANGALAM, THIRUVANANTHAPURAM , PIN - 695010 2 COMMISSIONER FOR ENTRANCE EXAMINATIONS 5TH FLOOR KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM - 695001 BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL OFFICE KERALA SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) ## **OTHER PRESENT:** SR.GP.K.V. MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).39224/2022 2 ## **JUDGMENT** Dated this the 15[th] day of December, 2022 The petitioner is a person with 40% locomotor disability. She sought admission to MBBS Course based on the marks secured by her in NEET (UG)-2022 Entrance Examination. Being a candidate belonging to the PwD category, the petitioner was required to appear before the State Medical Board, Government Medical College, Kozhikode, for assessing her disability. Accordingly, the petitioner reported before the Medical Board on 27.09.2022. To the petitioner’s dismay, in Ext.P5 Certificate of Disability issued on 15.10.2022, she was assessed with 55% disability and found not eligible to pursue Medical Course. Aggrieved, this writ petition is filed seeking the following reliefs; i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider the situation of the petitioner and allow her to join in accordance with her rank and marks by considering the disability. W.P.(C).39224/2022 3 ii) To direct the respondents to give chance for the petitioner to get selection in accordance with her rank and marks. iii) To grant such other relief that may be deemed just and proper by this Hon'ble Court. 2. Learned Counsel for the petitioner contended that the petitioner being a person with 40% disability, is eligible for admission to MBBS Course. The finding in Ext.P5 that the petitioner is having 55% disability and the conclusion that she is not eligible to pursue medical course is patently illegal and against the objective of the Right of Persons with Disabilities Act, 2016. The judgement of this Court in **Aswathy v. Union of India** [2021 (2) KLT 356] is pressed into service to contend that disability should not result in the petitioner being denied admission. 3. Learned Government Pleader submitted that, although persons within the disability range of 40 to 80% are eligible for admission, their suitability for a particular course is decided by the State Level Committee, based on the guidelines prescribed by the National Medical Commission. On such assessment the W.P.(C).39224/2022 4 petitioner was found not suitable for MBBS Course. The experts having arrived at such a conclusion, this Court may not sit in appeal over the decision. 4. The admission process of NEET-2022 is governed by the prospectus approved _vide_ G.O(MS)No. 170/2022/HEDN dated 25.03.2022. Clause 5.3 of the Prospectus deals with reservation for persons with disability. Therein it is specified that candidates seeking admission to medical courses (except BHMS) will have to satisfy the eligibility criteria prescribed by the National Medical Council for ‘Persons with Disabilities’. The NMC criteria is available at Annexure XXIV(i) of the prospectus. As per the Guidelines, persons with locomotor disability within the disability range of 40 to 80% are eligible for medical course in PwD quota, subject to both hands being intact, with intact sensations, sufficient strength and range of motion. Unfortunately, the petitioner is having congenital limb deficiency trans carpel amputation of left hand and poor hand function on the left. Hence, the petitioner was found not suitable for MBBS as per the NMC guidelines. As such, the W.P.(C).39224/2022 5 State Level Committee’s decision cannot be faulted. As rightly pointed out by the learned Government Pleader, this Court should not be sitting in judgment over the findings of an expert body. 5. The contention that denial of admission to MBBS course will be against Section 3 of the Rights of Persons with Disabilities Act, 2016 cannot be countenanced for the reason that as per Sub-section 3 of Section 3 of the Act, such discrimination is permissible if it is for the purpose of achieving a legitimate aim. The legitimate aim in assessing the suitability of candidates is to ensure that from among the candidates with disabilities, the most suitable gets the opportunity to pursue the course. 6. As regards the contention based on the judgement in W.P.(C) No. 27225 of 2020, it is to be noted that the petitioner therein was suffering from Cerebral Palsy. In the judgment, the learned Single Judge has clearly observed that the consideration of a candidate with cerebral palsy and that of candidates with locomotor disabilities is different. The issue W.P.(C).39224/2022 6 stands covered against the petitioner by the decision of the Hon’ble Supreme Court in **Vidhi Himmat Katariya and Others v. The State of Gujarat and Others** [(2019) 10 SCC 20], paragraph 8 of which reads as under; “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.” W.P.(C).39224/2022 7 For the aforementioned reasons, the writ petition is dismissed. **Sd/-** **V.G.ARUN JUDGE** sb W.P.(C).39224/2022 8 ## **APPENDIX OF WP(C) 39224/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|THE TRUE COPY PLUS TWO RESULT OF THE| ||PETITIONER DATED 28.07.2021.| |Exhibit P2|THE TRUE COPY OF DISABILITY CERTIFICATE| ||ISSUED FROM GOVERNMAENT MEDICAL COLLEGE| ||KOZHIKODE DATED 13.04.2022.| |Exhibit P3|THE TRUE COPY OF THE SCORE CARD OF NATIONAL| ||ELIGIBILITY CUM ENTRANCE TEST (UG) 2022 DATED| ||07/09/2022| |Exhibit P4|THE TRUE COPY OF THE NEET (UG) -2022 RESULT| ||SUBMISION REPORT FOR THE ADMISSION OF MEDICAL| ||AND MEDICAL ALLIED COURSES 2022| |Exhibit P5|THE TRUE COPY OF THE PHYSICAL DISABILITY| ||ISSUED BY THE AUTHORITIES CERTIFICATE OF| ||DISABILITY FOR NEET ADMISSION DATED| ||15/10/2022| |Exhibit P6|THE TRUE COPY OF REPRESENTATION SUBMITTED| ||BEFORE THE DISABILITY COMMISSIONER DATED| ||21.10.2022.|