Shivendu R. Sekhar v. State of Kerala and Others

-:1:- WA. 266/2022 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 ## WA NO. 266 OF 2022 [AGAINST THE JUDGMENT DATED 7.2.2022 IN WP(C) NO.3019/2022 OF THIS HON'BLE COURT OF KERALA] ## APPELLANT/PETITIONER: SHIVENDU R. SEKHAR, AGED 18 YEARS, D/O. CHANDRANSEKHARAN R., IEMPANTHANATHU, CHIRAKKADAVU CENTRE P.O., KOTTAYAM-686519. BY ADVS. SRI. V. A. MUHAMMED SRI. M. SAJJAD ## RESPONDENTS/RESPONDENTS: - 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. - 2 THE COMMISSIONER OF ENTRANCE EXAMINATION, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. - 3 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695011. WA. 266/2022 -:2:- BY GOVERNMENT PLEADER SRI. P. G. PRAMOD (GP-50) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:- WA. 266/2022 ## **J U D G M E N T** ## S. Manikumar, C.J. Instant writ appeal is filed challenging the common judgment in W.P.(C) No. 3019 of 2022 and connected cases dated 7.2.2022, by which, the writ court having found no reason to interfere in the matter, dismissed the writ petition. ## 2. Before the writ court, petitioner/appellant has sought for the following reliefs: “(i) issue a writ of mandamus or other appropriate writ order or direction commanding the 2[nd] respondent to permit the petitioner to submit her option for admission to MBBS Course, 2021. (ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 2[nd] respondent to accept Exhibit P10 as a valid option submitted by the petitioner for MBBS admission. (iii) issue a writ of mandamus or other appropriate writ order or direction commanding the 2[nd] respondent to allot and admit the petitioner in MBBS seat, set apart for Physically Handicapped candidates according to her ranking, by accepting her option.” ## 3. Short facts leading to the writ petition are as under: ## a) Appellant is having 40% Physically Disability. She has passed Plus Two Course (Biology and Science) in the year 2020 with 93% -:4:- WA. 266/2022 marks. She took part in the National Eligibility-Cum-Entrance Test, 2021 and secured 162 score. She also has cleared KEAM 2021. Hence, she is entitled to get admission for MBBS Course, 2021. b) Appellant has further stated that for getting admission to MBBS course, she submitted application under KEAM 2021, claiming reservation under the physically challenged category also. For consideration of admission against the reserved seats, appellant has appeared before the Medical Board constituted, as directed by the Commissioner for Entrance Examination, Thiruvananthapuram, respondent No.2, wherein it was found that she is having 40% disability and fit for MBBS admission. c) Appellant has further stated that the Entrance Commissioner has published the list of physically challenged candidates eligible for MBBS course and she was enlisted at Sl. No. 42 in the said list. In Exhibit-P5 data sheet published in the candidate portal also, the appellant was shown as qualified for admission to the MBBS course. d) However, in the candidate portal, the provision for submitting options was not open to her. The last date for submitting the option was -:5:- WA. 266/2022 29.01.2022, before 5 p.m. As per the prospectus, 5% of the seats are set apart for physically challenged candidates, which would come to 63 MBBS seats. Since the appellant is ranked at 42 in the list of physically challenged candidates for MBBS admission, once she is permitted to upload her option, she can secure admission, and therefore, she ought to have been permitted to upload her option. e) Appellant has also stated that it is highly necessary to direct the Commissioner of Entrance Examinations, respondent No.2, to provide the facility for submitting options in her candidate portal, before the scheduled time, enabling her to submit her option. 4. After considering the rival submissions, writ court, by the impugned judgment, dismissed the writ petition, holding as under: “19. The admission to the MBBS Course is primarily governed by the qualifications prescribed by the Medical Council of India. The Medical Council of India Regulations provide that as far as admission of Persons with Disability in MBBS Courses is concerned, the candidate should have 40% disability. 20. Ext.P1 Prospectus for admission to Professional Degree Courses, 2021 issued by the Commissioner for Entrance Examinations provides a mechanism for deciding the eligibility of -:6:- WA. 266/2022 Persons with Disability for admission to MBBS Course. The mechanism provides a medical examination by the District Board and State Board as well as its clearance by a State Level Committee constituted by the Government under the Chairmanship of the Commissioner for Entrance Examinations. The said Committee is represented by special invitees from the Engineering / Pharmacy / Medical / Agricultural/ Veterinary / Forestry / Fisheries Specialties, who will be taking final decision on the eligibility of a candidate for PwD quota. The decision will be as per the criteria fixed by the various Central Councils and the suitability of the candidate to study a particular course. It is made clear in Ext.P1 that the recommendations of the State Level Committee will be binding on the candidates. 21. Though the petitioners were issued with certificates by the District and State Boards certifying that their disabilities are of such a nature that they are eligible for admission to MBBS Course, the State Level Committee constituted by the Commissioner for Entrance Examinations has found that the petitioners' disabilities, especially the disabilities relating to functioning of the limbs, make the petitioners ineligible for admission to MBBS Course. This Court finds that the decision of the State Level Committee is in tune with the Regulations framed by the MCI with regard to admission of students to MBBS under PwD quota. 22. This Court finds that the judgment of the learned Single Judge of this Court in W.P.(C) No.27225 of 2020, does not deal with the admission under the State quota. -:7:- WA. 266/2022 23. This Court has already considered this issue in W.P.(C) No.16743 of 2019. This Court found that it may not be proper for this Court to sit over the finding rendered by an expert body and take a different conclusion in the matter of eligibility of PwD candidates for admission to MBBS Courses. A Division Bench of this Court in W.A. No.1694 of 2019, while upholding the judgment in W.P.(C) No.16743 of 2019, held that the Court should not substitute its own views when the opinion of the Medical Board is available on the issue. The experts from different Medical Institutions have assessed disabilities of the petitioners and found that their disability is of such a nature which makes them unsuitable to pursue MBBS. In the circumstances, this Court finds no reason to interfere in the matter. The writ petitions stand dismissed.” ## 5. Being aggrieved, instant writ appeal is filed by the appellant on the following grounds: A. Appellant was examined by the Medical Board and the Chairman of the Medical Expert Committee found that she is eligible for the course. Learned Single Judge has distinguished the judgment in W.P.(C) No.27225 of 2020 for denying admission for MBBS, observing that the said judgment is with respect to All India Quota and the appellant sought for admission under State Quota. B. Learned Single Judge also found that though other -:8:- WA. 266/2022 appellants were issued with certificates by the District and State Board that their disabilities are of such a nature that they are eligible for admission to MBBS, the State Level Committee constituted by the Commissioner for Entrance Examination has found that appellants' disability relating to the functioning of the limb makes the appellant ineligible for admission to MBBS Course. Learned Single Judge failed to appreciate that the State Level Committee has not examined the appellant at any point of time. C. The Medical Board found that the appellant is having 20% disability in prehension and 20% strength of her left hand. Her left hand is having sufficient strength for pursuing MBBS Course. D. It is contended that as per Exhibit-P1 prospectus, the very same criteria of physical fitness of limb is prescribed for BHMS Course. He also submitted that appellant is found eligible and suitable for the said course by the Entrance Commissioner and the link is made available to her at a later point of time. Hence, according to the appellant, denying admission to her for MBBS Course is highly illegal and unsustainable. E. It is further contended that the Entrance Commissioner has found the appellant eligible and suitable for MBBS course and published Exhibits P5 and P6. Cancellation of -:9:- WA. 266/2022 the said benefit, without a notice, is highly illegal as held by the Hon'ble Apex Court in **Ramesh Kumar V. v Ram Kumar and others** reported in AIR 1984 SC 1029]. F. It is further contended that relying on the prospectus, learned Single Judge has refused to interfere with the stand of Entrance Commissioner. Learned Single Judge ought to have found that in terms of Rights of Persons With Disabilities Act, 2016, reservation is provided for admission to Education Courses and by way of a guideline in the prospectus, which is not a substitute of a statutory provision, would not prevail. G. It is further contended that the appellant ought not have been denied admission to MBBS Course, according to her merit in the category of Persons With Disability. According to the appellant, there is no fault on her part for being included in Exhibit-P6 category list, who ought to have been allotted to MBBS Course, according to her merit from the said list. As evident from Ext. P2 Disability Certificate, the disability of the appellant is moderate and the condition is likely to be improved. 6. When this writ appeal came up for admission, relying on Clause 5.3 of Exhibit-P1 Prospectus for Admission to Professional Degree Courses, 2021, Mrs. P.A. Jenzia, learned counsel for the appellant, as well as learned Government Pleader, made submissions. -:10:- WA. 266/2022 ## 7. Clause 5.3 of Exhibit-P1 prospectus deals with reservation of persons with disabilities, and it reads as under: ## “ **5.3 Reservation for Persons with Disabilities(PD):** Five percent of the seats available to the State for allotment from the State rank lists are reserved for candidates with benchmark disabilities for all courses in Govt./Aided Colleges as stipulated in Section 32, Chapter VI of the Persons with Disabilities Act 2016. As per Clause 2 (r), Chapter I of the Act, ‘Person with benchmark disability’ means a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. Generally, candidates who have a minimum of 40% disability alone will be eligible to apply for this quota. Candidates seeking admission to Medical Courses (except BHMS course) will have to satisfy the eligibility criteria prescribed by the Medical Council of India for ‘Persons with Disabilities’ [See Annexure XXIV(i)] and for BHMS course the candidate will have to satisfy the eligibility criteria prescribed by the Central Council of Homoeopathy [See Annexure XXIV(ii)]. -:11:- WA. 266/2022 For claiming reservation under PwD category, the certificate of disability from the District Medical Board certifying the percentage of degree of disability has to be produced before the State Medical Board at the time of medical verification. The certificate of disability from the District Medical Board must be produced at the time of medical verification. No document/certificate is to be uploaded to the online application. However, candidates claiming PwD status can indicate that at the entry for the same on the online application. The State Medical Board constituted vide G.O. (MS) No.35/2020/H&FWD Dated. 17.02.2020 by the Government under the Chairmanship of DME consisting of Medical Experts in General Medicine, ENT, Neurology, Orthopaedic Surgery, Ophthalmology, Psychiatry and Physical Medicine& Rehabilitation, will examine the degree of Physical disability of the candidates who are provisionally included in this category. The State Medical Board will have powers to review the certificate issued by the District Medical Board. A State Level Committee constituted by the Government under the Chairmanship of the Commissioner for Entrance Examinations consisting of -:12:- WA. 266/2022 the members in the Medical Board constituted under the Chairmanship of DME, special invitees representing Engineering/ Pharmacy/ Medical/Agriculture/ Veterinary/ Forestry/Fisheries specialities will take a final decision on the eligibility of a candidate for PwD quota as per the criteria fixed by the various Central Councils and the suitability of the candidate to study a particular course applied by him/her. Only those candidates who are having a minimum 40% of any disability and are found to be physically suitable by the Committee for the courses opted by the candidates will be chosen for a course as only the physically fit can undergo the rigors of a professional course. The recommendations of this State Level committee will be binding on the candidates. The selection of candidates under this category will be based on the merit in the Entrance Examination and physical suitability, and not on the basis of the degree of disability. The Commissioner for Entrance Examinations will prepare and publish the list of candidates eligible under PwD quota based on the recommendations of the State Level Committee.” 8. According to the appellant, Clause 5.3 deals with reservation for persons with disabilities. The benchmark disability is defined to WA. 266/2022 -:13:- mean, a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specific disability has been defined in measurable terms as certified by the certifying authority. Admittedly, disability of the appellant was assessed at 40%. Therefore, it is asserted that the appellant is eligible to secure the benefit of Clause 5.3 of Exhibit-P1 prospectus. However, the said clause further makes it clear that for claiming minimum reservation under PwD category, the certificate of disability from the District Medical Board, certifying the percentage of degree has to be produced. 9. In the case on hand, the appellant has produced the disability certificate issued by the Medical Board, at the time of medical verification by the said Medical Board. It could be seen that the State Medical Board is vested with the powers to review the certificate issued by the District Medical Board. 10. It is also clear from the reading of Clause 5.3 of Exhibit-P1 Prospectus that the State Level Committee constituted by the Government, under the chairmanship of the Commissioner for Entrance -:14:- WA. 266/2022 Examination, consisting of members of the Medical Board, constituted under the chairmanship of Director of Medical Education, special invitees, representing Engineering/Pharmacy/Medical/Agriculture/ Veterinary/Forestry/Fisheries specialities, will have to take a final decision, as regards the eligibility of candidates for PwD quota, as per the criteria fixed by the various Central councils, and also the suitability of a candidate to study a particular course applied by him/her. 11. Clause 5.3 of Exhibit-P1 prospectus further makes it clear that only those candidates who are having a minimum 40% of any disability and found to be physically disabled by the State Level Committee for the course, opted by the candidates, will be chosen for a course, as physically fit to undergo the rigors of a professional course, and that the recommendations of the State Level Committee will be binding on the candidates. Therefore, it could be deduced that selection of the candidates under the reservation quota for persons with disabilities will be based on the merits of Entrance Examination, subject to the suitability. There is no dispute that the appellant was ranked at Sl. No.42, in the list of differently challenged candidates. WA. 266/2022 -:15:- 12. Appellant has raised a contention that she was recommended to be suitable by the State Level Committee. However, according to her, later on, the word 'Not' was inserted in the column specified for MBBS suitability. Since the appellant has raised such a contention, we directed the learned Government Pleader to produce the files pertaining to the admissions made in the college, earmarked for persons with disability, as per Clause 5.3 of Exhibit-P1 prospectus. 13. Pursuant to the abovesaid direction, learned Government Pleader has produced the files along with a petition dated 24[th] February, 2022. Perusal of the said file makes it clear that the appellant is certified to be having 40% disability and the certificate issued by the State Level Medical Board shows that the 40% disability was arrived at on the basis of prehension - 20% and strength - 20%. 14. The fact remains that in the application format submitted by the appellant, entries have been made by the District Medical Board, as well as State Medical Board. The initial certificate recorded by the Chairman of State Medical Board viz., Dr. Remla Beevi A., Director, Directorate of Medical Education, Kerala State, Thiruvananthapuram, -:16:- WA. 266/2022 indicates that the appellant was found suitable for MBBS Course, against the seats earmarked for the differently challenged. 15. In the first page, as prescribed under Clause 5.3 of Exhibit-P1 prospectus, entries have been made relating to the eligibility criteria, wherein, it is certified that disability of the appellant is 40%. However, in the second page of the application, against column MBBS, it is shown as ‘Not suitable’. 16. Going through the files carefully, we find that initially, it has been entered as ‘suitable’ and signed by all the members of the State Level Committee constituted to assess the suitability of any candidate to study a particular course. Later on, an insertion has been made and the word “Not” is added, either unilaterally by the Chairman of the Medical Expert Committee or on his directions. 17. As per Clause 5.3 of Exhibit-P1 prospectus, District Medical Board and State Medical Board are only competent to certify the extent of disability. But, as per Clause 5.3 of the prospectus, the Medical Expert Committee constituted under Clause 5.3 of the prospectus is competent and the only authority to certify both, eligibility and -:17:- WA. 266/2022 suitability of a candidate to pursue any particular course. 18. The Committee, which met on 23.09.2021, with the opinion of Dr.K.P. Jayakumar, Principal, Kottayam Medical College (Chairman of the Medical Expert Committee), has found the appellant as suitable for admission to MBBS course. Presumably, all the members of the said Committee have consented for the said opinion, which cannot be changed by the Chairman of Medical Expert Committee on his own or on his/her directions, for the reason that, as Chairman of the Committee, he/she is not empowered to alter the decision of the Committee. If that is permitted, the whole concept of constituting a Committee, as per Clause 5.3 of Exhibit-P1 prospectus, would be an empty formality. 19. When there is no discretion or power conferred on the Chairman of State Level Expert Committee, to decide the suitability of a candidate, on his/her own, and when the same is conferred on the Committee comprises of many doctors, any alteration at a later point of time, should be held as arbitrary. 20. Going through the files, we are of the view that the Committee has found the appellant as suitable for pursuing MBBS course. Without -:18:- WA. 266/2022 the knowledge of the other members of State Level Medical Expert Committee, the Chairman, _suo motu_ , or on his directions, has included the word 'Not' in Column No. ‘2’ which deals with suitability. 21. Taking into account all the above aspects, we are of the view that the appellant has made out a case for interference with the impugned judgment. 22. Earlier, finding a _prima facie_ case in favour of the appellant, as per the interim order dated 3.3.2022, we directed the respondents to keep one seat earmarked for disabled candidates in MBBS course vacant, till a final decision is taken in the appeal. In that view of the matter, respondents are directed to provide admission to the appellant for the MBBS course. Let the portal be opened, so as to enable the appellant to opt for the college, depending upon, her retaining in the list. Writ appeal is allowed accordingly. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** Eb & krj //TRUE COPY// P.A. TO C.J.