Chinnu J. Regina v. Commissioner of Entrance Examinations, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935** ## **WP(C).No. 14839 of 2013 (D)** **----------------------------------------** **PETITIONER:** **-------------------** **CHINNU J.REGINA, D/O.M.F.JACOB, MOONJAPILLY, SEBASTIAN ROAD, KALOOR, KOCHI-682 017.** **BY ADVS.SRI.SEBASTIAN PAUL, SRI.RON BASTIAN, SMT.SABEENA P.ISMAIL, SMT. LIZAMMA AUGUSTINE.** **RESPONDENT:** **----------------------** **COMMISSIONER OF ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** **BY GOVERNMENT PLEADER SRI. ROSHAN D. ALEXANDER.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2013, ALONG WITH W.P.(C).NOS. 15473/2013 & 16611/2013, THE COURT ON 26-08-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.14839/2013-D:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - TRUE COPY OF THE RANK LIST OF C.B.S.E - NATIONAL ELIGIBILITY CUM ENTRANCE TEST - UG 2013.** **EXTR.P2 - TRUE COPY OF THE MEMO ISSUED BY THE RESPONDENT DATED 24-5-2013. EXT.P3 - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 9-6-2013.** ## **RESPONDENT'S EXHIBIT:** **EXT.R1.A: COPY OF THE MEDICAL INSPECTION REPORT OF THE COMMITTEE DTD. 07/06/2013.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J. “C.R.” :::::::::::::::::::::::::::::::::::::::::::::::: W.P.(C). Nos. 14839, 15473 & 16611 of 2013 ...................................................... Dated this the 26[th ] day of August, 2013** ## **JUDGMENT** Whether Clause 5.3 of the Prospectus for admission to Professional Colleges in the State, as approved by the Government of Kerala vide G.O.(Ms) No. 644/12 H.Edn dated 18.12.2012, to the extent of ignoring/rejecting the disability of the upper limbs, is ultra vires to the provisions of the 'Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' ('Act' in short) and whether the petitioners are entitled to get admission to MBBS Course, based on their rank in the Common Entrance Examination (NEET - UG, 2013) is the subject matter involved in all these writ petitions. 2. The petitioner in W.P.(C).No. 14839/2013 passed the Higher Secondary Course with 83% marks and secured the percentile score of '61.9762' in the NEET - UG, 2013, thus was placed at rank no. '324' in the All India Quota and at rank no.'29' in the State Quota. It is pointed out that, the petitioner is having 55% disability, because of the handicap medically termed as 'lymphangitis' and gigantism of fingers and toes. With reference to Ext.P3 Medical Certificate, it is contended that, her hands are ## W.P.C. Nos. 14839, 15473 & 16611/13 -2- fully mobile and she is fully dexterous and as such, admission to MBBS Course cannot be denied to the petitioner. Stipulation to the contrary under Clause 5.3 of the Prospectus is under challenge, contending that, it is ultra vires to the above 'Act'/Constitution. 3. The petitioner in W.P.(C).No. 16611/2013 is a similarly situated person suffering from locomotory disability to the upper limbs, to the extent as certified by Ext.P1 Medical Certificate. The disability is in respect of her right leg, below the knee with natural amputation by birth and congenital deformity to the right hand. It is contended that, the petitioner has secured 88% marks in the 'Plus Two' examinations, with very high marks for biology practical examination as well. On clearing the NEET -UG, 2013, the petitioner stands placed at rank No.'234' in the All India Quota and with Rank No.'24' in the list of persons with disabilities. The challenge is mainly against Clause 5.3 of the Prospectus making the petitioner ineligible, because of her disability to the upper limbs. 4. Petitioner in W.P.(C).No. 15473 of 2013, does not have fingers in her right hand and the disability has been assessed as 40% by the Medical Board. By virtue of Clause 5.3 of the W.P.C. Nos. 14839, 15473 & 16611/13 -3- Prospectus issued by the 2[nd] respondent (Commissioner for Entrance Examinations), admission to the MBBS Course is denied to the petitioner, with reference to disability to her upper limbs; which made the petitioner to approach this Court challenging the said clause in the Prospectus; besides challenging the relevant Regulations issued by the 4[th] respondent/MCI, restricting the benefit of Special Reservation under the 'Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', in respect of 3% reservation to persons having disability, whereby the persons like the petitioner having disability to the upper limbs are excluded. 5. A counter affidavit has been filed by the Commissioner for Entrance Examinations in all the three cases. With regard to the eligibility of the petitioners to have Special Reservation with reference to the 3% Quota under the 'Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', it is stated that, none of the petitioners are eligible to have admission to the MBBS Course, in view of the clear stipulation under 'Clause 5.3' of the Prospectus, as the disability is admittedly to their upper limbs. It is also pointed out on behalf of the said respondent that, such a stipulation has been included W.P.C. Nos. 14839, 15473 & 16611/13 -4- in the Prospectus, based on the relevant stipulation/regulation issued by the Medical Council of India (MCI) and that, the 2[nd] respondent is bound to follow the same. A copy of the relevant Medical Inspection report has been produced as Ext.R1(a)/R2(a) in the concerned cases. 6. The Medical Council of India has not been sought to be impleaded in the party array in W.P.(C).No. 14839 of 2013 and W.P.(C).No. 16611/2013, despite the detailed counter affidavit filed by the Commissioner for Entrance Examinations as to the circumstance under which 'Clause 5.3' came to be incorporated in the Prospectus, referring to the MCI Regulations. Since the MCI Regulations have not been challenged, the petitioners are prima facie liable to be non-suited on this score alone. But it is seen that, the MCI has been impleaded in the party array in the connected case, i.e., W.P.(C).No.15473 of 2013 and challenge has been raised in respect of the regulations as well. The Medical Council of India has filed a verified petition, I.A. No. 9900 of 2013, through the learned Standing Counsel, seeking to bring about the factual particulars and the unsustainability of the challenge raised against the regulations, simultaneously referring to the verdict passed by the Apex Court in the concerned cases, W.P.C. Nos. 14839, 15473 & 16611/13 -5- permitting to proceed with selection and admission, strictly in tune with the Regulations prescribed by the MCI. It was accordingly, that all these matters were taken up together and heard in detail. 7. Heard Mr. Sebastian Paul the learned counsel for the petitioner in W.P.(C).No. 14839/2013, Sri. Devan Ramachandran in W.P.(C). No. 15473 and Mr. K. Abdul Jawad in W.P.(C).No. 16611/2013. The factual and legal position on behalf of the respondents were sought to be asserted by Mr. Roshan D. Alexander, learned Government Pleader appearing for the Commissioner for Entrance Examinations/State and also Mr.Alexander Thomas, the learned Standing Counsel for the MCI. 8. During the course of hearing, it was asserted by the learned counsel for the petitioners that, the stipulation restricting the benefit of Special Reservation to the prescribed extent of 3% as contemplated under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, excluding the persons with disability to the upper limbs from the purview of consideration is quite arbitrary, illegal and against the statute. It is pointed out that, Section 2(t) of the Act defines the term “disability” as a person suffering from not less W.P.C. Nos. 14839, 15473 & 16611/13 -6- than forty percent of any disability as certified by a medical authority. As such, any such person who has disability to the extent of 40% and above is entitled to have the benefit of Special Reservation. This being the position, such right cannot be restricted further, by incorporating more stringent conditions either by the Commissioner for Entrance Examinations or by the MCI, submits the learned counsel. 9. Reliance is placed on the decision rendered by a Division Bench of the High Court of Gujarat as reported in **Dr. Devai R. Mehta** v **. Union of India & Others (AIR 2011 Gujarat 33)** , whereby a similar course pursued earlier by the concerned respondents including the MCI, with regard to the admission to P.G. Course, excluding persons with disability to upper limbs from getting admission, was intercepted, holding that the MCI cannot exclude persons with upper limb locomotive disorder, from getting admission, on the ground that, such persons cannot elicit signs during clinical examination. Almost similar view was taken even earlier, by a Division Bench of the High Court of Assam, as per the decision rendered in **Smt. Anju Talukdar & Another** v. **State of Assam & Others (AIR 2009 Gauhati 54)** . After referring to the various provisions of the 'Persons with Disabilities W.P.C. Nos. 14839, 15473 & 16611/13 -7- (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', particularly Section 39, denial of admission to Paramedical Courses, to persons having disability of requisite extent to the upper limbs and confining the same to persons with locomotory disability of lower limbs ranging from 50% to 70% was intercepted; holding that, it was clearly contrary to the language of the enactment and therefore void. Similar decision was rendered by the Madras High Court as reported in **P. Rajaprabaharan** v. **The Secretary to Govt., Higher Education Deptt., Chennai and Others. (AIR 2005 Madras 346)** holding that, admission to MBBS Course in respect of Special Reservation under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 cannot be confined or restricted by the State by increasing the percentage of disability, over and above the stipulation under the 'Act', and accordingly, it was declared that the relevant provision in the Prospectus was invalid. 10. The learned Government Pleader appearing for the State/Departmental Authority submits that, prescription of 'Clause 5.3' in the Prospectus excluding persons having visual/hearing impairment or those having disability to the upper W.P.C. Nos. 14839, 15473 & 16611/13 -8- limbs, from the purview of admission to Medicine Courses is with a specific intent, which is intricately connected with the duty to be performed as a Doctor, by feeling the signs/symptoms and also by conducting speedy action/emergent surgery and such other requirements, making use of both the hands. The deformity/disability to the lower limbs plays only a lesser role and hence the concession/accommodation in respect of such category, in so far as it is within the prescribed extent. It is also pointed out that the competent authority to fix the relevant norms is none other than the MCI and it was based on the Regulations issued by the MCI, that 'Clause 5.3' came to be incorporated in the Prospectus, which is not assailable under any circumstance. 11. The learned Standing Counsel for the MCI points out that, the MCI, with regard to the admissions in the Medicine courses has laid down specific guidelines; whereby it has been stipulated that, only persons with more than 50% but less than 70% locomotory disability of lower limbs alone can be considered under the provisions of the 'Disabilities Act', 1995. It is pointed out that, this matter was considered by the General Body of the Council in its meeting held on 20.10.2003, wherein members of W.P.C. Nos. 14839, 15473 & 16611/13 -9- the Ad-hoc Committee appointed by the Hon'ble Supreme Court were also present. The General Body, after considering the matter, came to the conclusion that, the requirement as above was necessary to ensure that the benefit of reservation actually reached the deserving candidates, as discernible from Ext.R4(a) Minutes of the meeting held on 20.10.2003. This has been taken note of by the Central Government and the requirement has been communicated to all States/Union Territories for considering candidates, for the 3% quota under the 'Act' vide Ext. R4(b) letter dated 12.05.2004. 12. The Medical Council of India points out that, the above stipulation, restricting the benefits to persons with disability to lower limbs (within the range of 50% - 70% disability) had come up for consideration before a Division Bench of the High Court of Orissa in W.P. Nos. 7877 & 7878 of 3004 - D.S. Rashmi Ranjan v. Chairman, JEE & Others and as per the common judgment, the relevant regulation issued by the Medical Council of India, confining admission of persons having locomotory disability of lower limbs up to 70% to Medicine Course was upheld by the Bench. However, the minimum percentage of disability fixed at 50% alone was reduced to 40%, with reference to the relevant W.P.C. Nos. 14839, 15473 & 16611/13 -10- provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A copy of the said judgment dated 2.2.2005 has been produced as Ext.R4 (c). 13. The inference made as per Ext.R4(c) judgment with respect to the extent of/percentage of disability was already subjected to challenge by the MCI by filing SLP (C) Nos. 795253/2005, wherein Ext.R4 (d) interim order of stay has been granted by the Apex Court on 25.04.2005. In the course of further proceedings, the Apex Court as per order dated 24.08.2006 in the above SLP (C)s required the MCI to explain as to why the candidates suffering from locomotory disability of lower limbs of less than 50%, but more than 40% disability, are not given admission to the Medical courses; in case sufficient number of candidates with disability of 50% to 70% are not available for the 3% of reservation seats. In consonance with the above order, the MCI (Graduate Medical Education) Regulations 1997 were amended as per Ext.R4 (e) notification dated 25.03.2009, making an addition after after sub-clause 2(f) in Chapter II as follows: _“3. 3% of the annual sanctioned intake capacity shall be filled up by candidates with_ ## W.P.C. Nos. 14839, 15473 & 16611/13 -11- _locomotory disability of lower limbs between 50% to 70%._ _Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for general category candidates._ _......................_ ......" 14. Taking note of the turn of events as above, the Apex Court finally heard and disposed of the Civil Appeals as per Ext.R4(f) judgment dated 24.08.2011, directing that, the reservation for physically handicapped candidates for Medical course will be regulated in the manner provided in the amended MCI regulations and not in the manner directed by the High Court of Orissa. The above decision was followed in other cases as well (Civil Appeal Nos. 8447 - 8448 of 2010) holding that, the candidates with 40% to 50% locomotory disability could be considered, where candidates with 50% to 70% disability are not available, as provided in the amended MCI regulations; a copy of which has been produced as Ext.R4(g). It is further brought to ## W.P.C. Nos. 14839, 15473 & 16611/13 -12- the notice of this Court that, the decision rendered by the Division Bench of the High Court of Gujarat reported in **AIR 2011 Gujarat 33** has already been subjected to challenge by filing SLP before the Apex Court and that an interim order of stay has been granted by the Apex Court on 18.07.2011 as borne by Ext.R4(h). The said case was tagged on with W.P.(C).No. 184/2005 as discernible from Ext.R4(h). Later, final verdict was passed by the Apex Court in W.P.(C).No. 184/2005, as per Ext.R4(i) dated 07.03.2013, whereby the concerned authorities were directed to implement the MCI Regulations strictly, in the matter of 3% disability quota in Medical courses. In the above facts and circumstances, this Court finds that, the challenge raised by the petitioners against 'Clause 5.3' of Ext.P4 Prospectus in W.P(C)No.15473/2013 issued by the Commissioner for Entrance Examinations, Kerala and the relevant regulations issued by the MCI, which form the basis for having incorporated Clause 5.3, is devoid of any merit. Interference is declined and all these writ petitions are dismissed accordingly. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-