Muhammed Shammas P.P. v. Commissioner for Entrance Examinations and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 ``` ## **`WA NO. 1788 OF 2022`** ## **`AGAINST THE JUDGMENT IN WP(C) 33891/2022 OF HIGH COURT OF KERALA`** ## **`APPELLANT/PETITIONER:`** ``` MUHAMMED SHAMMAS.P.P AGED 21 YEARS, S/O. MARIYAM BEEBI, RESIDING AT 'FATHIMAMANZIL, KADOOR P.O. CHERUPAZHASSI, KANNUR, PIN – 670 601. ``` ``` BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI ``` ## **`RESPONDENT/S:`** ``` 1THE COMMISSIONER FOR ENTRANCE EXAMINATIONS HOUSING BOARD BUILDING,SHANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695 001. 2STATE MEDICAL BOARD DIRECTOR OF MEDICAL EDUCATION GOVERNMENT MEDICAL COLLEGE CAMPUS, KUMARAPURAM ROAD, CHALAKUZHI, THIRUVANANTHAPURAM, PIN – 695 011. 3NATIONAL TESTING AGENCY REPRESENTED BY CHAIRPERSON, C-20 IA/8 SECTOR 62, IITK OUTREACH CENTRE, NOIDA, PIN – 201 309. 4THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVT SECRETARIAT, THIRUVANTHAPURAM, PIN – 695 001. BY GOVERNMENT PLEADER SRI. P.G. PRAMOD SRI. S.NIRMAL ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.1788 of 2022** **2** ## **JUDGMENT** Dated this the 8[th ] day of December, 2022 ## **Shaji P. Chaly, J.** Appellant challenges the judgment of the learned single Judge in W.P.(C)No.33891 of 2022 dated 28.10.2022; whereby the following reliefs sought for by the appellant were declined and the writ petition was dismissed. - “i) declare that the petitioner being a person with only 60% disability is fully eligible to be admitted for MBBS course. - ii) Issue a writ of mandamus or any other writ or order directing the 2[nd] respondent to conduct the medical test on the petitioner once again by properly constituted medical board by including all the required experts. - iii) Issue a writ of mandamus or any other writ or order directing the 1[st] respondent to include the petitioner also in the list of allotment for MBBS course. - iv) Dispense with the translations of documents in vernacular language produced along with this writ petition. ” It is thus challenging the legality and correctness of the judgment, the writ appeal is filed. **W.A.No.1788 of 2022** **3** 2. Brief material facts for the disposal of the appeal are as follows: 2.1. Appellant, who is a differently abled person with 60% disability, claimed admission to the MBBS curriculum under the earmarked PwD quota; however, he was found not suitable and eligible for MBBS course. According to the appellant, he has secured 97% marks in plus-two science and rank No.381 in the PwD category in the National Eligibility cum Entrance Test (UG) - 2022, conducted by the National Medical Commission. It is the case of the appellant that as per the scorecard, appellant secured All India Rank 307202 with 82.50%, with category rank No.133949-PwD rank 381. It is submitted that the appellant had earlier been granted a certificate as per Right of Persons with Disabilities Act, 2016 which evaluated locomotor disability of right upper limb with diagnosis of Phocomelia right upper limb with 60% disability. Appellant has made his application for eligibility in the PwD category in the Entrance Examination (KEAM) - 2022 conducted by the ## **W.A.No.1788 of 2022** **4** Commissioner for Entrance Examinations, Kerala - 1[st] respondent, adhering to the instructions for such differently abled category. 2.2. It is further submitted that a candidate is required to submit himself before notified medical board as per notification dated 22.09.2022 issued by the Commissioner for Entrance Examinations. It seems, the appellant appeared before the Medical Board, Kannur Government Medical College, Pariyaram on 07.10.2022. However, practically no examination or tests were conducted by them. But later, a provisional list was published on 12.10.2022 containing details of eligible, non-eligible and not suitable candidates belonging to the PwD category for courses of medical, medical allied and pharmacy. It is the further case of the appellant that as per the provisional list, he was at serial No.39 in seriatim with status as “not eligible” for PwD and “not suitable” for MBBS. 2.3. According to the appellant, as per the National Medical Commission norms, the appellant was entitled as of ## **W.A.No.1788 of 2022** ## **5** right to secure admission if he has the disability of 60%. Considered so, the reason as “not eligible” recorded on the basis that “right hand is not competent and functional” cannot be sustained under law and such a course adopted by the respondents are arbitrary and illegal, and that the learned single Judge ought to have interfered with the action of the Commissioner for Entrance Examinations. It is also the contention of the appellant that in appendix H-1, the guidelines, which provides the admission of students with “specific disabilities” for admission in MBBS course, those candidates having more than 80% disability are only ineligible for admission; however, those with the disability range of 40-80% can be considered but their functional competency would have to be determined. The case projected by the appellant is that though the disability is congenital in nature by birth, over a period of substantial number of years, the appellant has gained ability to overcome the disability by practice and independent wisdom to effectively utilise the affected limb in a most **6** ## **W.A.No.1788 of 2022** efficient and able manner. Other contentions are also raised. 3. The learned single Judge, after taking into consideration the contentions advanced by the appellant and the guidelines contained under the prospectus, has dismissed the writ petition holding as follows: “4. As the reason for filing this writ petition, viz; the findings in Ext. P7 certificate, is not in relation to NEET-2022, the writ petition is liable to be dismissed on that short ground. Even then, the future education prospects of the petitioner being at stake, the other contentions are also being looked into. 5. The admission process of KEAM-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 Medical Council of India for ‘persons with disabilities’. The MCI criteria is available at Annexure XXIV(i) of the prospectus. As per that 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. **W.A.No.1788 of 2022** **7** Unfortunately, the petitioner is having congenital limb deficiency of right upper limb with shortening of forearm and absent little figure and radius and his hand function is found to be inadequate. Being so, the petitioner is not suitable for MBBS as per the MCI guidelines. As such, the State Medical Board had given a correct opinion. As pointed out by the learned Government Pleader, this court cannot sit in judgment over the findings of the expert body.” 4. We have heard learned counsel Sri.Abdul Raoof Pallipath for the appellant; learned Government Pleader Sri.P.G. Pramod for the State officials and learned standing counsel Sri.S. Nirmal for the National Testing Agency and perused the pleadings and the material on record. 5. The sole question to be considered is whether any interference is required to the judgment of the learned single Judge. It is clear from clause 5.3 of the prospectus dealing with the reservation for persons with disability that candidates seeking admission to medical courses except BHMS, will have to satisfy the eligibility criteria prescribed by the National Medical Commission. The MCI criteria contained under Annexure XXIV(i) of the prospectus which ## **W.A.No.1788 of 2022** ## **8** states that persons with locomotor disability, within the disability range of 40-80% are eligible for medical course in PwD quota, on condition that both hands are intact, with intact sensations and sufficient strength and range of motion. It is an admitted fact that the appellant is having congenital limb deficiency of right upper limb with a shortening of forearm and absent little finger and radius and his hand function is found to be inadequate. Therefore, the appellant is not suitable for MBBS as per the guidelines of the National Medical Commission. 6. In our view, it was taking note of the guidelines and correlating the same with the disability of the appellant alone, admission was declined to the appellant for MBBS. Moreover, the appellant knew fully well before participating in the examination that the guidelines contained in the prospectus, as well as the annexure issued by the National Medical Commission are applicable to the appellant. 7. In fact, the issue raised by the appellant was **9** ## **W.A.No.1788 of 2022** considered by a Division Bench of this court in the judgment in **Albin Joseph v. Commissioner for Entrance Examinations and Others** (W.A.No.1694 of 2019 dated 26.07.2019), which upheld the judgment in W.P.(C)No.16743 of 2019 and held that a writ court is not expected to sit in appeal over the views adopted by the Medical Board to ascertain the disability of a candidate in terms of the guidelines issued by the respective statutory authorities. There is also no case for the appellant that there is any mala fide action on the part of the respondents to decline admission to the appellant. 8. Considering the facts, circumstances and the law, we are of the view that the learned single Judge was right in declining the reliefs sought for by the appellant. After appreciating the rival submissions, we could not locate any legal infirmity or other jurisdictional error in the judgment of the learned single Judge, so as to interfere with the same exercising the power conferred under section 5 of the Kerala High Court Act 1958, in an intra **10** ## **W.A.No.1788 of 2022** court appeal. Accordingly, the writ appeal is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S. Manikumar Chief Justice** Sd/- **Shaji P. Chaly Judge** **vpv** **W.A.No.1788 of 2022** **11** ## **`APPENDIX OF WA 1788/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure1TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATIONS FOR THE YEAR 2022. ``` ``` Annexure2TRUE COPY OF THE NOTIFICATION DATED 23.12.2011 ISSUED BY THE MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT. ``` //true copy// P.A. to Judge