Dr.KRISHNASETHULAXMY v. State of Kerala and Others

W.P.(C). No.3028 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 WP(C) NO. 3028 OF 2023** **PETITIONER:** **DR.KRISHNASETHULAXMY AGED 27 YEARS** **D/O KA SASIKUMARAN, VASANTHAM HOUSE, NEAR DIAT LAB UP SCHOOL,THODUPUZHA, IDDKKI, PIN - 685584 BY ADV V.AJITH NARAYANAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM ., PIN - 695001** - **2 THEE COMMISSIONER OF ENTRANCE EXAMINATION OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, HOUSING BOARD BUILDINGS,UPPER ZONE, V TH FLOOR, THIRUVANANTHAPURAM, PIN - 695001** - **3 THE CONTROLLER OF EXAMINATION OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, HOUSING BOARD BUILDINGS,UPPER ZONE, VTH FLOOR, THIRUVANANTHAPURAM, PIN - 695001** - **4 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE, MEDICAL COLLEGE- KUMARAPURAM ROAD, CHALAKKUZHY,ULLOOR,THIRUVANANTHAPURAM, PIN - 695011** - **5 THE PRINCIPAL SECRETARY HEALTH/ AYUSH DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN – 695001** W.P.(C). No.3028 of 2023 2 **BY ADV. SRI.P.G.PRAMOD, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C). No.3028 of 2023 3 ## **JUDGMENT** ## **Dated this the 24[th] day of February, 2023** This writ petition is filed seeking a direction to the Commissioner of Entrance Examination, Thiruvananthapuram – the 2[nd] respondent to reallot the petitioner to any of the two subjects such as, 'Salakyathanthram' in Government Ayurveda College, Kannur or 'Kayachikilsa' in Government Ayurveda College, Thiruvananthapuram, for her Postgraduate studies; and for other related reliefs. 2. Brief material facts for the disposal of the writ petition are as follows: The petitioner herein is an Ayurvedic Doctor with a degree of BAMS. She belongs to Vishwakarma community and is physically disabled with 40% permanent disability, due to Cerebral Palsy, evident from Exhibit P1 medical certificate dated 15.9.2010. 3. According to the petitioner, the petitioner has 8[th] rank in the rank list for physically disabled candidates who appeared in the All India Ayush Post Graduate Entrance Examination, evident from Exhibit P2 score card - 2022; that on 17/01/2023, a Medical Board counselling in regard to the disability in connection with the Post Graduate admission has taken place in the office of the Directorate of Medical Education, Thiruvananthapuram, in which petitioner W.P.(C). No.3028 of 2023 4 attained 2[nd] position evident from Exhibit P4 rank list. 4. According to the petitioner, the period from 20/01/2023 to 24/01/2023 is the period fixed for giving option for Post Graduate courses in the candidate portal, evident from Exhibit P5 notification issued by the 2[nd] respondent. The only three options given to the petitioner being physically disabled are; (1) Roga nidanam, (2) Dravya gunavinjanam, and (3) Rasa shasthravumdhaishajyakalpanayum. 5. It is submitted that as per the prospectus, the petitioner is eligible for getting altogether 8 options, in which some subjects are very suitable to the petitioner. But since no other way, she was compelled to give options from the above said three subjects on priority through her portal and on 23/01/2023 forenoon. However it is stated that the petitioner personally met the Commissioner of Entrance Examination – the 2[nd] respondent in his office at Thiruvananthapuram, and also submitted representations dated 23/01/2023 forenoon and afternoon, evident from Exhibits P8 and P9 respectively; requesting the 2nd respondent to allot her admission for Post Graduate course in any of the subjects, viz.,'Salakyathanthram', 'Kaya chikilsa' etc., which were clearly earmarked for physically disabled candidates in the prospectus. 6. But the 2[nd] respondent has not taken any efforts for redressing the W.P.(C). No.3028 of 2023 5 grievances of the petitioner, is the contention. According to the petitioner, by offering non-suitable and non-clinical subjects to the physically disabled, and violating the basic directives in the prospectus for providing 8 optional subjects, attempts are being made by the 2[nd] respondent to get the vacancies for the physically disabled to be kept unfilled, and to carry forward the said vacancies to the general category for accommodating the general category candidates. 7. According to the petitioner, apart from that, petitioner has successfully undergone compulsory rotatory intern-ship for Kaya Chikilsa and Salakyathanthram for two months each and hence, she is absolutely fit and comfortable in her further studies in the said subjects, evident from Exhibit P10 certificate dated 4.1.2023. 8. The Paramount contention advanced by the petitioner is that though she is physically disabled with 40% permanent disability she is having 8[th] rank for physically disabled candidates who appeared for the All India Ayush Post Graduate Entrance Examination. It is further pointed out that in the Medical Board verification counselling with respect to the disability in connection with the Post Graduate admission, petitioner was having 2[nd] position among those who have attended disability verification counselling. W.P.(C). No.3028 of 2023 6 9. It is further submitted that, while petitioner is eligible and suitable to apply for all the subjects , only three options were given to the petitioner, which are all non-clinical subjects, non-suitable for physically disabled candidates. But since there is no other way, petitioner through her portal opted three subjects on a preferential basis. 10. A counter affidavit is filed by the 2[nd] respondent refuting the claims and demands raised by the petitioner. Among other contentions it is stated that the admission process for Ayurveda Courses is being done as per various provisions in the Prospectus for admission to PG Ayurveda Courses, which was approved by the Government vide G.O.(Rt) No.617/ 2022/AYUSH dated 29.12.2022. 12. It is further submitted that the Government have constituted the State Medical Board under the chairmanship of the Director of Medical Education and medical experts in General Medicine, ENT, Neurology, Orthopaedics, Ophthalmology, Psychiatry and Physical Medicine & Rehabilitation as its members for examination and certification of degree of disabilities vide G.O. (Ms) No.35/2020/H&FWD dated 17.02.2020; also for assessing the suitability for the Courses, a State level Committee was constituted under the chairmanship of Commissioner for Entrance Examinations. The special invitees W.P.(C). No.3028 of 2023 7 representing Ayurveda Medical Education took the final decision regarding the suitability of the candidates to study a particular Ayurveda course applied by the candidates. 13. It is also submitted that the petitioner was present before the State Medical Board on 17.01.2023 and the State Medical Board reported that the petitioner has 40% disability. The State level Committee examined the petitioner on the basis of the Medical report and found that the petitioner is eligible for PWD quota, but suitable only for non-clinical subjects. True copy of the report is produced herewith as Annexure R2(a). According to the 2[nd] respondent, following the report of the State Level Committee, the option facility for non-clinical subjects was only provided to the petitioner during the option registration. As per the report, the petitioner was not suitable for pursuing study in clinical subjects. 14. It is also submitted that the first phase provisional allotment list for admission to PG Degree/Diploma Ayurveda Courses has been published on 27.01.2023 and the petitioner got allotment in 'Roga Nidanam' at Government Ayurveda College, Kannur; and therefore seeks dismissal of the writ petition. 15. Heard learned counsel for petitioner Sri.Ajith Narayanan.V., learned Government Pleader Sri.P.G.Pramod and perused the pleadings and material W.P.(C). No.3028 of 2023 8 on record. 16. The question to be considered is whether the petitioner is entitled to get a seat in any other disciplines other than the ones offered to the petitioner being a candidate applied for the Post Graduate Ayush Course in the quota of the differently abled candidates. It is an admitted fact that the petitioner has 40% disabilities. It was taking into consideration the disability of the petitioner that appropriate and feasible Post Graduate courses were offered to the petitioner, finding that the petitioner would be suitable only for pursuing non-clinical subjects. 17. It is an admitted fact that the Government have constituted a State Medical Board under the Chairmanship of the Director of Medical Education and Medical Experts in General Medicine, ENT, Neurology, Orthopaedics, Ophthalmology, Psychiatry and Physical Medicinal & Rehabilitation as its members for examination and certification of degree of disabilities in accordance with the Government Order dated 17.2.2020. In addition to the same, for assessing the suitability of the courses, a State Level Committee was constituted under the Chairmanship of the Commissioner of Entrance Examinations. The special invitees representing Ayurveda Medical Education took the final decision regarding the suitability of a candidate to study a W.P.(C). No.3028 of 2023 9 particular Ayurveda course applied by the candidate. It was on the basis of the disability of 40% fixed by the State Medical Board, the State Level Committee examined the petitioner and found that the petitioner is eligible for PwD quota but suitable only for non-clinical subjects, evident from Annexure R2(a) certificate. 18. Therefore, the sum and substance of the contention advanced by the respondents is that it was taking into account the certificates issued by the competent persons and experts, the petitioner was offered with non-clinical subjects. It is well settled in law that when experts take a decision as to the manner in which the admissions have to be provided to a candidate with disabilities, a writ court is not expected to sit over the findings rendered by such expert committees and substitute its own findings. 19. The question with respect to the power of such committees to offer suitable courses, taking into account the disability of a candidate in respect of the admissions offered to various courses including BAMS was considered by a Division Bench of this Court (I am a party) in **Nimmy Alphonsa Joseph v. State of Kerala** [2020 SCC Online Ker 7854] and held that such suitability of a candidate found out by the expert committee need not be interfered. So also this question was considered by yet another Division W.P.(C). No.3028 of 2023 10 Bench of this Court in W.A.No.1694 of 2019 in **Albin Joseph v. the Commissioner of Entrance Examinations and others,** and held that the court should not substitute its own views when the opinion of the Medical Board is available on the issue; and that the experts from the medical discipline examined the extent of disability and determined that the petitioner therein will not be able to provide basic life saving procedure and it will be difficult for the 80% disabled aspirant to pursue and complete the MBBS curriculum. 20. Taking into account the above said legal aspects, I am of the view that the petitioner has not made out a case of arbitrariness, illegality or any other legal infirmities, justifying interference of this Court in a proceeding under Article 226 of the Constitution of India. Needless to say, the writ petition fails, accordingly, it is dismissed. Sd/- **SHAJI P.CHALY** smv **JUDGE** W.P.(C). No.3028 of 2023 11 ## **APPENDIX OF WP(C) 3028/2023** |**PETITIONER'S EXHIBITS**|| |---|---| |**Exhibit P1**|**TRUE COPY OF THE MEDICAL CERTIFICATE DT**| ||**15/09/2010.**| |**Exhibit P2**|**TRUE COPY OF THE SCORE CARD OF 2022 AYUR PG**| ||**ENTRANCE TEST 2022 ISSUED TO THE PETITIONER BY**| ||**THE SENIOR DIRECTOR, NATIONAL TESTING AGENCY**| |**Exhibit P3**|**TRUE COPY OF THE ACKNOWLEDGEMENT OF THE**| ||**CANDIDATE PORTAL WITH APPLICATION NUMBER OF THE**| ||**PETITIONER**| |**Exhibit P4**|**TRUE COPY OF THE RANK LIST PUBLISHED BY THE**| ||**MEDICAL BOARD**| |**Exhibit P5**|**TRUE COPY OF THE NOTIFICATION DT 20/01/2023**| ||**ISSUED BY THE COMMISSIONER OF THE ENTRANCE**| ||**EXAMINATION STATING ABOUT THE PERIOD OF OPTION**| ||**THROUGH CANDIDATE'S PORTAL**| |**Exhibit P6**|**TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**PROSPECTUS FOR ADMISSION TO THE PG COURSES GO**| ||**(RT) NO. 617/2022/AYUSH DT 29/12/2022.**| |**Exhibit P7**|**TRUE COPY OF THE RELEVANT PAGES OF THE CHOICES**| ||**ALLOTTED TO THE PETITIONER TO THE 2ND**| ||**RESPONDENT BY THE PETITIONER**| |**Exhibit P8**|**TRUE COPY OF THE REPRESENTATION DT 23/01/2023**| ||**TO THE 2ND RESPONDENT BY THE PETITIONER**| |**Exhibit P9**|**CERTIFICATE DT 04/01/2023 ISSUED TO THE**| ||**PETITIONER BY THE PRINCIPAL, GOVT. AYURVEDA**| ||**COLLEGE, THRIPOONITHURA**| |**Exhibit10**|**TRUE COPY OF THE COMPULSORY ROTATORY INTERN-**| ||**SHIP CERTIFICATE DT 04/01/2023 ISSUED TO THE**| ||**PETITIONER BY THE PRINCIPAL, GOVT. AYURVEDA**| ||**COLLEGE, THRIPOONITHURA**| |**RESPONDENT ANNEXURES**|| |**Annexure R2(a)**|**True copy of the State Medical Board Report**| ||**dated 17.01.2023.**|