Nimmi Alphonsa Joseph v. State of Kerala & 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** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **WA.No.1563 OF 2020** ## **AGAINST THE INTERIM ORDER DATED 19.11.2020 IN WP(C) NO.24864/2020(G) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **NIMMI ALPHONSA JOSEPH AGED 19 YEARS D/O. NIRMAL JOSEPH,ANNA COTTAGE, JAYANTHI ROAD, PO.CHALAD, KANNUR-14.** ## **BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695001.** - **3 COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR KSHB BUILDING,SS KOVIL ROAD, SANTHI NAGAR,THIRUVANANTHAPURAM-695001.** - **4 DISTRICT HOSPITAL, AYIKKARA GOVERNMENT HOSPITAL ROAD, KANNUR-670017.** - **5 DISTRICT MEDICAL OFFICER, DISTRICT HOSPITAL, AYIKKARA GOVERNMENT HOSPITAL ROAD, KANNUR-670017.** - **6 THE ASSESSMENT BOARD FOR ASSESSING DISABILITY, REPRESENTED BY CHAIRPERSON, GOVERNMENT MEDICAL COLLEGE HOSPITAL, PARIYARAM, MEDICAL COLLEGE.P.O, KANNUR-670503.** **WA.1563/2020** 2 - **7 GOVERNMENT MEDICAL COLLEGE HOSPITAL, REPRESENTED BY ITS PRINCIPAL, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM, PIN-695011.** - **8 NATIONAL MEDICAL COMMISSION, REPRESENTED BY ITS CHAIRMAN, (FORMERLY MEDICAL COUNCIL OF INDIA), POCKET-14, SECTOR, DWARKA PHASE-1, NEW DELHI-110077.** - **9 THE CONVENOR, NEET, CENTRAL BOARD OF SECONDARY EDUCATION, SIKSHA KENDRA, 2-COMMUNITY CENTRE, PREET VIHAR, DELHI-110092.** - **10 SENIOR DIRECTOR, NEET (UG) UNIT, NTA OF HIGHER EDUCATION, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA WEST BLOCK-1, WING NO.6, 2ND FLOOR, R K PURAM, NEW DELHI-110066.** - **11 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, (DEPARTMENT OF HIGHER EDUCATION), CENTRAL SECRETARIAT, NEW DELHI-110001.** - **12 CENTRAL COUNCIL OF HOMOEOPATHY, REPRESENTED BY ITS SECRETARY, JAWAHARLAL NEHRU BHARTIYA CHIKITSAAVUM HOMOEOPATHIC, ANUSANDHAN BHAWAN, 61-65, INSTITUTIONAL AREA, OPP.'D' BLOCK, JANAK PURI, NEW DELHI-110058.** **R1 TO R7 BY SENIOR GOVT. PLEADER SRI.V.MANU, R8 BY ADV. SRI. TITUS MANI VETTOM, SC R9 TO R2 BY ADV. SRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.1563/2020** 3 ## **JUDGMENT** Dated this the 30[th] day of November, 2020 ## **S. Manikumar, CJ** This _intra court_ appeal is directed against the interim order in W.P.(C) No.24864 of 2020 dated 19.11.2020, by which a learned single Judge declined to grant the interim reliefs sought for by the appellant in the writ petition. 2. Brief facts leading to the appeal are that appellant/writ petitioner claims to a person with visual disability, having low vision. She applied for admission to the Undergraduate Medical Course (Medical/ Dental/BAMS/BSMS/DHMS/BHMS Course) and came out successfully in the NEET Examination. The overall rank obtained by the appellant is 553689. The category rank of the appellant under OBC is 240758. The Physically Handicapped (PH) category rank number of the appellant is 1226. The writ petition was filed aggrieved by the action of the respondents in not providing admission and reservation for persons with disabilities, such as the appellant and thus, denying equal opportunity to the appellant for the Undergraduate Medical Courses under the National Eligibility-cum-Entrance Test (Undergraduate) (NEET), 2020, and Kerala Engineering Architecture Medical (KEAM), 2020. **WA.1563/2020** 4 3. Appellant has further stated that as per the Rights of Persons with Disability Act, 2016 (RPWD Act, 2016, for short), and the Rights of Persons with Disability Rules, 2017 (RPWD Rules, for short), she is entitled to both admission and reservation in the undergraduate courses. However, as per Appendix H-1 of the Graduate Medical Education Regulations (Amendment), 2019, the appellant is rendered ineligible to be admitted in the undergraduate courses. According to the appellant, the said regulations are violative of the RPWD Act, RPWD Rules and Articles 14 and 15 of the Constitution of India. The interim reliefs sought for, were directions to keep the seat unfilled for the above courses and to direct the authorities concerned to constitute a Medical Board, to examine the appellant. However, vide the impugned interim order, the said reliefs were declined by the learned single Judge, without proper appreciation. Hence, this writ appeal. 4. Prayers sought for by the appellant/writ petitioner in the writ petition are as under: - (i) To declare that Graduate Medical Education Regulations (Amendment), 2019 [contained in Appendix H-1 of Exhibit-P2 relevant pages of prospectus of NEET 2020 (Information Brochure] to the extent to which it excludes visually impaired persons having disability of 40% or more from admission and reservation to undergraduate courses under NEET 2020, as well as KEAM 2020, and Exhibit-P3, **WA.1563/2020** 5 adopting the same to the extent impugned are unjust, illegal and arbitrary. - (ii) To issue a writ of certiorari quashing Graduate Medical Education Regulations (Amendment), 2019 (contained in Appendix H-1 of Exhibit-P2) to the extent to which it excludes visually impaired persons from admission and reservation to undergraduate courses under NEET 20920 and KEAM 2020 as unjust, illegal and arbitrary. - (a) In the alternative, declare that a harmonious reading of the impugned regulations with the RPWD Act, 2016 would mean persons with visual impairment of 40% and above are entitled to be considered for both admission to undergraduate medical courses and 5% reservation under the category of persons with disabilities. - (iii) To issue a writ of certiorari quashing Exhibit-P3 Prospectus for Admission To Professional Degree Courses, 2020, to the extent to which it adopts the provisions of Annexure H-1 of the Graduate Medical Education Regulations (Amendment), 2019 contained in Exhibit-P2 impugned in prayer No.(ii) as unjust, illegal and arbitrary. - (iv) To issue a writ of certiorari quashing Exhibit-P8 document declaring the appellant as ineligible, obtained from the website of KEAM, as unjust, illegal and arbitrary. - (v) To issue a writ of mandamus directing respondent Nos.6 and 7 viz., The Assessment Board for assessing authority, represented by chairperson, Government Medical College Hospital, Pariyaram, Kannur; and Government Medical College Hospital, Represented by its Principal, **WA.1563/2020** 6 Thiruvananthapuram, to constitute a Disability Medical Board as required under the Persons with Disabilities Act, 2016 r/w. Persons with Disabilities Rules, 2017, and examine the petitioner and grant a disability certificate as prescribed under the law; - (vi) To declare that the petitioner is a person with benchmark disability and is eligible and entitled to be admitted to MBBS/BHMS/DHMS course under NEET-2020, according to the OBC-PH rank obtained by her; - (vii) To direct the respondents to grant admission to the petitioner to MBBS/BHMS/DHMS course under NEET-2020 according to the OBC-PH rank obtained by her.” ## 5. Pending disposal of the writ petition, by way of interim reliefs, ## appellant has sought for the following: - (I) To keep one seat vacant and unfilled in the allotment process for admission to MBBS/BHMS/DHMS courses under NEET-2020 and KEAM-2020 provisionally and subject to the result of the writ petition, and; - (II) To direct respondents 6 and 7 to constitute a Disability Medical Board as required under the Persons with Disabilities Act, 2016 r/w Persons with Disabilities Rules, 2017, examine the petitioner and grant a disability certificate before completion of the allotment to the abovesaid courses. 6. Taking note of the extant Graduate Medical Education Regulations, 2019 and Appendix H of the regulations, which states that a **WA.1563/2020** 7 candidate having visual impairment of 40% or above is categorised as 'not eligible for admission to medical courses', clause 5.2 of Exhibit-P2 Prospectus of NEET (UG)-2020, that candidates with disability shall be considered for admission to medical course, in accordance with the criteria prescribed under the Graduate Medical Education Regulations, 1997, Exhibit-P3 Prospectus issued by the Government of Kerala for Admission to Professional Degree Courses – 2020, reservation for persons with Disabilities (PD), as dealt with in clause 5.3 of the said prospectus, a decision of the Madras High Court in Exhibit-P10 judgment dated 30.04.2019 in W.A. (MD) No.1481 of 2018, and various decisions cited by both sides, including the decision of this Court in W.P.(C) No.23657 of 2017 dated 31.08.2017, which repelled the claims of similar candidates, writ court has declined the interim reliefs sought for by the appellant. 7. While doing so, writ court has also considered a judgment in W.P.(C) No.16743 of 2017 dated 18.07.2019, wherein at paragraph 16, a learned single Judge of this court ordered thus: “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 **WA.1563/2020** 8 remains, MCI has carried out amendments to the Regulations to tide over such situations and has incorporated Annexure H-1 to the Regulations enabling the authorities also to assess the suitability of candidates.” 8. Said judgment has been upheld by a Hon'ble Division Bench of this court vide judgment dated 26.07.2019 in WA No.1694 of 2019. 9. Assailing the impugned interim order dated 19.11.2020, the appellant has filed the instant appeal. 10. Though several grounds have been raised, Ms. Maitreyi S. Hegde, learned counsel appearing for the appellant, submitted that as per the Standing Disability Assessment Board Certificate issued by the District Hospital, Kannur dated 19.12.2019 (Exhibit-P4), appellant was found with visual impairment, certified at 75%. She has further submitted that the appellant has successfully completed NEET (UG) Examination-2020 with an overall rank of 553689, category rank of 240758 under OBC, and PH category rank of 1226. Though she is eligible for admission to MBBS Course on her merit, while applying Annexure H-1 of the The Graduate Medical Education Regulations (Amendment), 2019, her chance of getting admission is remote. Thus, challenging the said regulations as arbitrary and contrary to Section 32 of the Rights of Persons with Disability Act, 2016, writ petition has been filed for the reliefs stated supra. **WA.1563/2020** 9 11. Learned counsel for the appellant further submitted that though a request was made by the appellant to the Standing Disability Assessment Board, Kannur, to re-assess the extent of visual impairment, the same has not been promptly considered. According to the learned counsel, the appellant is being examined today. She has every chances of reduction in the extent of visual impairment. 12. Learned counsel for the appellant further submitted that as the appellant had been successful in NEET (UG) Examinations, with a rank of 1226 in PH category, before conclusion of the counselling, which is scheduled today, she may be in a position to obtain necessary visual impairment certificate from the aforesaid competent authority and thus, in the above circumstances, unless and until a seat in MBBS Course is kept vacant, the appellant would be put to serious loss and irreparable hardship. For the abovesaid reasons, learned counsel for the appellant prayed for reversal of the impugned interim order. 13. _Per contra_ , Mr. V. Manu, learned Senior Government Pleader for the State submitted that, the impugned interim order was passed on 19.11.2020, whereas, the instant appeal has been filed today seeking urgent motion. The first phase of counselling ends on 02.12.2020. 14. Learned Senior Government Pleader further submitted that the 2019 Regulations came into existence on 14.05.2019. It is also his **WA.1563/2020** 10 contention that the challenge made to the said regulations has already been repelled by a learned single Judge in the judgment dated 18.07.2019 in W.P.(C) No.16743 of 2019, which on appeal, has reached finality. According to him, the writ court has considered the rival submissions and passed a well considered order, rejecting the interim reliefs sought for by the appellant, and the same does not require interference. For the reasons stated above, he prayed for dismissal of the instant appeal. 15. Heard the learned counsel for the parties and perused the material on record. 16. Material on record discloses that in exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Board of Governors, in supersession of Medical council of India, with the previous sanction of the Central Government, has made an amendment to the Gradual Medical Education Regulations, 1997, namely, “Gradual Medical Education Regulations (Amendment), 2019, and accordingly, a notification has been issued on 13.05.2019, substituting Appendix H-1 therein. In accordance with the Regulations, 2019, Government have approved G.O.(MS) No.62/2020/HEDN dated 30.01.2020 and accordingly issued prospectus for admission to professional degree course. As regards eligibility conditions imposed in the prospectus the candidates, who have **WA.1563/2020** 11 minimum 40% disability alone would be eligible to apply as against the seats earmarked for differently abled persons. Even as per the admission of the appellant that as per Exhibit-P4 certificate dated 19.12.2019, the extent of her visual impairment was 75%, as assessed by the Standing Disability Assessment Board, Kannur. From the above, it could be seen that though the Amended Regulations, 2019, were issued as early as on 13.05.2019, and that Exhibit-P3 prospectus was issued on 30.01.2020, the appellant has not chosen to challenge the same promptly and had undertaken NEET (UG) Entrance Examinations-2020. The appellant has filed W.P.(C) No.24864 of 2020 only on 11.11.2020. 17. Material on record further discloses that as per the judgment in W.A.(MD) No.1481 of 2018 dated 30.04.2019, a Hon'ble Division Bench of the Madras High Court has considered the abovesaid issue. Argument has also been made by the learned Senior Government Pleader that this Court in the judgment dated 18.07.2019 in W.P.(C) No.16743 of 2019 has taken note of the amendment made by the Medical Council of India to the 1997 Regulations, is to tide over such situations, and the incorporation of Appendix H-1 to the regulations, is to enable the authorities to assess suitability of the candidates. He also submitted that the decision in W.P.(C) No.16743 of 2019 dated 18.07.2019 has been upheld by a Hon'ble Division Bench of this Court in W.A. No.1694 of 2019. **WA.1563/2020** 12 18. From the material on record, it could be deduced that while seeking to quash the Graduate Medical Education Regulations (Amendment), 2019, in particular, Appendix H-1, and Exhibit-P3 prospectus for admission to Professional Degree Courses, 2020 on the one hand, which prescribes that visual impairment persons having disability of 40% or more are not eligible for admission to MBBS Course simultaneously, the appellant seems to have approached the Standing Disability Assessment Board, Kannur, for issuance of a visual impairment certificate expecting reduction in the extent of disablement less than 40%. Though the learned counsel for the appellant submitted that as per the request, the appellant is being examined today and that there is a chance of issuance of a certificate as regards visual impairment, within the permissible limit, till today, no such certificate has been produced by the appellant. Further, there is no stay of the 2019 Regulations. 19. That apart, as stated supra, till November 11, 2020, the day on which the writ petition has been filed, the appellant has not taken any steps to assail the correctness of either the Amended Regulations, 2019 or the consequent prospectus issued (Exhibit-P3). As things stand today, those visually impaired candidates seeking admission to MBBS Course as against 5% of seats reserved for persons with disability alone are entitled to participate in the counselling, since the first phase of the same **WA.1563/2020** 13 commences from 01.12.2020 onwards, for two days. As on today, the appellant is not entitled for counselling. Giving due consideration to the impugned interim order, grounds raised, and the submissions made, we are of the view that there is no error or infirmity in the interim order passed by the learned single Judge dated 19.11.2020, warranting interference in this appeal. Accordingly, writ appeal is dismissed. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P.CHALY JUDGE** Krj **WA.1563/2020** 14 ## **APPENDIX** ## **'** - **APPELLANT S ANNEXURES** : A1:- COPY OF THE SCHEDULE OF THE COUNSELLING. ## **' RESPONDENTS ANNEXURES:- NIL** //TRUE COPY// P.A. TO CJ.