## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945**
## **WP(C) NO. 24471 OF 2023**
## **PETITIONER:**
NEHA NIZAR AGED 19 YEARS D/O NIZARHAMSA, NEDUVELIL, CHANGANACHERY.P.O, KOTTAYAM, PIN - 686101 BY ADVS. P.A.MOHAMMED SHAH RENOY VINCENT MUHAMED JUNAID V. SHILU SEBASTIAN FATHIMA AFEEDA P. ADITH KRISHNAN.U. SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY
## **RESPONDENTS:**
1 UNION OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAWAN, NEW DELHI, PIN – 110011 REPRESENTED BY ITS SECRETARY 2 THE SECRETARY MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, GROUND FLOOR, ANTYODAYA BHAWAN, ROOM NO. 637, A-WING, SHASTRI BHAWAN, NEW DELHI, PIN - 110001 3 MEDICAL COUNSELLING COMMITTEE, NIRMAN BHAWAN, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI, PIN – 110001 REPRESENTED BY DIRECTOR GENERAL OF HEALTH SERVICES. 4 NATIONAL TESTING AGENCY DEPARTMENT OF HIGHER EDUCATION, C-20 1A/8, SECTOR 62, IITK OUTREACH CENTRE, NOIDA, UP, PIN – 201309 REPRESENTED BY ITS DIRECTOR GENERAL 5 MEDICAL BOARD FOR DISABILITY (DESIGNATED DISABILITY CENTRE), THIRUVANANTHAPURAM MEDICAL COLLEGE,
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W.P.(C). Nos. 24471 & 24366 of 2023
THIRUVANANTHAPURAM, KERALA REPRESENTED BY ITS CHAIRMAN, PIN - 695001
- 6 DISTRICT MEDICAL OFFICER KOTTAYAM, CIVIL STATION, COLLECTORATE P.O KOTTAYAM, PIN - 686002
7 ADDL.R7: NATIONAL MEDICAL COMMISSION, (FORMERLY MEDICAL COUNCIL OF INDIA) REPRESENTED BY ITS CHAIRMAN, POCKET - 14, SECTOR -8, DWARAKA PHASE - 1, NEW DELHI - 110 077.
8 ADDL.R8: THE CONVENOR, NEET, CENTRAL BOARD OF SECONDARY EDUCATION, SIKSHA KENDRA, 2- COMMUNITY CENTRE, PREET VIHAR, NEW DELHI - 110 092 ( ADDL.R7 & R8 ARE IMPLEADED AS PER ORDER DATED 31/07/2023 IN IA 1/23 IN WP(C) )
9 ADDL.R9: THE DISABILITY CERTIFICATION BOARD,(DESIGNATED DISABILITY CERTIFICATION CENTRE - NEET), MADRAS MEDICAL COLLEGE, PARK TOWN, CHENNAI - 600003, REPRESENTED BY ITS CHAIRMAN. (IS SUO MOTO IMPLEADED AS PER ORDER DATED 02/08/2023 IN WP(C))
BY ADVS.
SRI. NIRMAL S SRI. P.A.MOHAMMED SHAH SRI. TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) SRI. S.MANU, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2023, ALONG WITH WP(C).24366/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C). Nos. 24471 & 24366 of 2023
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945**
## **WP(C) NO. 24366 OF 2023**
## **PETITIONER:**
NIDHA.T AGED 21 YEARS D/0. KHALID.T, THIRUNILATH HOUSE, KUTTIPPALA P.O., PANIKKARPADI, PERUMANNA, MALAPPURAM, KERALA, PIN - 676501
BY ADVS. P.A.MOHAMMED SHAH RENOY VINCENT SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY ABEE SHEJIRIK FASLA N.K MUHAMED JUNAID V. SHILU SEBASTIAN ADITH KRISHNAN.U. FATHIMA AFEEDA P.
## **RESPONDENTS:**
1 UNION OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAWAN, NEW DELHI REPRESENTED BY ITS SECRETARY, PIN - 110011 2 THE SECRETARY. MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, GROUND FLOOR, ANTYODAYA BHAWAN, ROOM NO. 637, A-WING, SHASTRI BHAWAN, NEW DELHI, PIN - 110001
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- 3 MEDICAL COUNSELLING COMMITTEE, NIRMAN BHAWAN, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI, REPRESENTED BY DIRECTOR GENERAL OF HEALTH SERVICES, PIN - 110001
- 4 NATIONAL TESTING AGENCY DEPARTMENT OF HIGHER EDUCATION, C-20 1A/8, SECTOR 62, IITK OUTREACH CENTRE, NOIDA, UP, REPRESENTED BY ITS DIRECTOR GENERAL, PIN - 201309
- 5 MEDICAL BOARD FOR DISABILITY,(DESIGNATED DISABILITY CENTRE), THIRUVANANTHAPURAM MEDICAL COLLEGE, THIRUVANANTHAPURAM, KERALA, REPRESENTED BY ITS CHAIRMAN., PIN - 695011
- 6 DISTRICT MEDICAL OFFICER, MALAPPURAM, 23QH+C2F, CIVIL STATION RD, UP HILL, MALAPPURAM, KERALA, PIN - 676505
- 7 ADDL.R7 NATIONAL MEDICAL COMMISSION, (FORMERLY MEDICAL COUNCIL OF INDIA) REPRESENTED BY ITS CHAIRMAN, POCKET - 14, SECTOR -8, DWARAKA PHASE - 1, NEW DELHI 110077.
- 8 ADDL.R8 THE CONVENOR, NEET , CENTRAL BOARD OF SECONDARY EDUCATION, SIKSHA KENDRA, 2- COMMUNITY CENTRE, PREET VIHAR, NEW DELHI - 110092 [ADDL.R7 AND R8 ARE IMPLEADED AS PER ORDER DATED 31.07.2023 IN I.A-1/2023 IN WP(C) 24366/2023]
- 9 ADDL.R9 THE DISABILITY CERTIFICATION BOARD, (DESIGNATED DISABILITY CERTIFICATION CENTRE - NEET), MADRAS MEDICAL COLLEGE, PARK TOWN, CHENNAI - 600003 REPRESENTED BY ITS CHAIRMAN [ADDL.R9 IS SUO MOTU IMPLEADED AS PER ORDER DATED 02.08.2023 IN WP(C)
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24366/2023]
BY ADVS. SRI.NIRMAL S SRI.TITUS MANI VETTOM SHI.NIRMAL S, SC, NATIONAL TESTING AGENCY SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) SRI.S.MANU, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2023, ALONG WITH WP(C).24471/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **P.V.KUNHIKRISHNAN, J.**
========================= W.P.(C) Nos.24471 & 24366 of 2023 ========================= Dated this the 18[th] day of August, 2023
## **JUDGMENT**
These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment.
2. I will narrate the facts in WP(C) No.24471 of 2023 first: The petitioner is a specially challenged young girl having a 60% permanent disability, certified by the Government of India vide Ext.P1 and it is the case of the petitioner that she is a person falling within the statutory definition of ‘person with benchmark disability’ under Section 2(r) of the Rights of Persons with Disability Act, 2016 and eligible to avail the 5% reservation u/s 32(2) of the said Act and the
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petitioner belongs to a community which is recognised as a Backward Class under the Government of India vide Ext.P3. As per the prospectus of NEET admission, the petitioner appeared before the 5[th] respondent for assessing the disability. The 5[th] respondent has certified that the petitioner suffers from 70% permanent disability making the petitioner eligible to avail the 5% reservation for PwD category, however vide Ext.P12, 5[th] respondent observed that the petitioner is not eligible for admission to medical courses citing the reason of “bilateral lobster hand”. According to the petitioner, her both hands are intact, having sensation, sufficient strength and range of motion. Therefore, this Writ Petition is filed with the following prayers:
_“(i) Issue an appropriate Writ Order of Certiorari or any other Order or direction to quash_
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_Exhibit P-12 certificate issued by the Respondent No.5 denying eligibility to the Petitioner to pursue medical course and avail the 5% PwD reservation in NEET-UG examination._
_(ii) Issue a Writ Order of Mandamus or any other Order or direction to the Respondent No.5 to issue the Petitioner with Certificate of Disability for NEET admissions approving the eligibility of the Petitioner to pursue medical course._
_(iii) Issue an appropriate Writ Order of Mandamus or any other Order or direction to the Respondent No.2 to admit the Petitioner under the OBC NCL/ PwD reservation category for NEET – UG Counselling process 2023._
_(iv) Pass such any other Writ Order, direction or reliefs as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.” [SIC]_
## 3. WP(C) No.24366 of 2023 is filed with
## following prayers:
_“(i) Issue an appropriate Writ Order of Certiorari or any other Order or direction to quash Exhibit P-10 certificate issued by the Respondent No.5 denying eligibility to the Petitioner to pursue_
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_medical course and avail the 5% PwD reservation in NEET-UG examination._
_(ii) Issue a Writ Order of Mandamus or any other Order or direction to the Respondent No.5 to issue the Petitioner with Certificate of Disability for NEET admissions approving the eligibility of the Petitioner to pursue medical course._
_(iii) Issue an appropriate Writ Order of Mandamus or any other Order or direction to the Respondent No.2 to admit the Petitioner under the PwD reservation category for NEET – UG Counselling process 2023._
_(iv) Pass such any other Writ Order, direction or reliefs as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.”[SIC]_
4. The petitioner in this case is also a specially challenged young girl having 43% permanent disability. She also appeared for the National Eligibility Cum Entrance Test (NEET-UG). The petitioner also appeared before the 5[th] respondent in this case for the purpose of assessing the disability. The 5[th] respondent certified that the
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petitioner suffers from 43% permanent disability making the petitioner eligible to avail 5% reservation for PwD category, however vide Ext.P10, respondent No.5 deemed the petitioner not-eligible for admission to medical courses citing reason of congenital absence of some fingers from MCP joints of left hand. It is the case of the petitioner that, her both hands are intact, with sensations, sufficient strength and range of motion and the only disability is that the second, third, fourth and fifth fingers have a mere stunted growth. Hence this writ petition is filed.
5. When WP(C) No.24471 of 2023 came up for consideration on 02.08.2023, this Court passed the following order:
_“The Disability Certification Board, (Designated Disability Certification Centre - NEET), Madras Medical College, Park Town, Chennai –_
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_600003 represented by its chairman is suo motu impleaded as the additional 9[th] respondent._
_2. The petitioner is aggrieved by the assessment of the disability fixed by the 5th respondent._
_3. After hearing both sides, I am of the considered opinion that there can be a direction to the additional 9[th] respondent to assess the disability of the petitioner and submit a report before this Court forthwith in tune with Ext.P7 regulation. The petitioner will appear before the additional 9[th] respondent on 04.08.2023. I am directing the additional 9[th] respondent, because the said authority is the Designated Disability Certification Centre as per reference No.U11011/01/2023-MEC dated 05.07.2023 of the Government of India, Directorate General of Health Services, Nirman Bhawan, New Delhi – 110108._
_Post on 07.08.2023.”_
6. When WP(C) No.24366 of 2023 came up for consideration on 02.08.2023, this Court passed the following order:
_“The Disability Certification Board, (Designated Disability Certification Centre - NEET),_
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_Madras Medical College, Park Town, Chennai – 600003 represented by its chairman is suo motu impleaded as the additional 9[th] respondent._
_2. The petitioner is aggrieved by the assessment of the disability fixed by the 5[th] respondent._
_3. After hearing both sides, I am of the considered opinion that there can be a direction to the additional 9[th] respondent to assess the disability of the petitioner and submit a report before this Court forthwith in tune with Ext.P6 regulation. The petitioner will appear before the additional 9[th] respondent on 04.08.2023. I am directing the additional 9[th] respondent, because the said authority is the Designated Disability Certification Centre as per reference No.U11011/01/2023-MEC dated 05.07.2023 of the Government of India, Directorate General of Health Services, Nirman Bhawan, New Delhi – 110108._
_Post on 07.08.2023.”_
7. Based on the same, petitioners appeared before the Disability Certification Board (Designated Disability Certification Centre - NEET), Madras Medical College, Park Town, Chennai, once again.
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Now the Disability Certification Board, Chennai submitted a report. As far as the petitioner in WP(C) No.24471 of 2023 is concerned, the proceedings of the Rajiv Gandhi Government General Hospital, Chennai shows that “she is not having structurally intact both hands & her right hand is DOMINANT. As per the NMC guidelines she is NOT ELIGIBLE for pursuing Medical course”. As far as the petitioner in WP(C) No.24366 of 2023 is concerned, it is observed that “she is not having structurally intact – left four fingers except thumb. So she is not eligible for passing medical course”.
8. Heard the learned counsel appearing for the petitioners in these cases, the respective Standing counsels appearing for the respondents, the learned Government Pleader and the learned DSGI.
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9. The counsel appearing for the petitioners raised three points. The counsel submitted that, in the light of the dictum laid by the Apex Court in **Vikash Kumar v. Union Public Service Commission and others** [2021 KHC 6065] and also in the light of the judgment of this Court dated 25.01.2021 in W.P.(C) No.27225/2020, which is produced as Ext.P13 in W.P.(C)No.24471 of 2023, the petitioners are entitled for the relief.
10. The counsel appearing for the respondents opposed the above submission.
11. This Court considered the contentions of the petitioners and the respondents. It is an admitted fact that the competent authority found that the petitioners in these cases are not
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eligible for admission to Medical courses. Taking a lenient view, this Court directed the petitioners to appear before the Disability Certification Board, Madras Medical College, Chennai which is a designated Disability Certification Centre for NEET. The above Disability Certification Board also submitted that the petitioners are not eligible for pursuing medical courses. In such circumstances, this Court cannot sit in appeal with the above decisions of the Medical Board. The Apex Court considered this point in paragraph No.8 of **Vidhi Himmat Katariya and others v. State of Gujarat and others** [2019 KHC 7052] which is extracted hereunder:
_“8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and / or authorities have not considered the relevant_
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_parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix 'H' - 'Both hands intact, with intact sensation, sufficient strength and range of motion'. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts - in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides.”_
12. In the light of the above decision I am of the considered opinion that, I am not in a position to accept the contentions of the petitioners that this Court should reject the report submitted by the competent Medical
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Boards invoking the powers under Article 226 of the Constitution of India. Counsel appearing for the petitioners relied on paragraph No.14 of the judgment dated 25.01.2021 in W.P.(C)No.27225 of 2020 which is produced as Ext.P13 in W.P. (C)No.24471 of 2023. It will be better to extract paragraph No.14 of the above judgment:
_“14. Reverting to the facts again, the petitioner is a person who can climb stairs with railing, though she has only minimum ability to run or jump and she has difficulty in moving with uneven surfaces. She is also a person who is able to handle most objects with somewhat reduced quality and/or speed of achievement. Denying admission to such a person in medical courses would be per se arbitrary. On a specific query from the court as to the basis for insisting that the hands of the candidates shall be intact with intact sensations, sufficient strength and range of motion, the answer given by the Standing Counsel for the third respondent was that the same is necessary for a person to perform the duties of a doctor. True, the doctors need to physically examine the patients, but_
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_all candidates pursuing medical courses are not becoming practising doctors. There are several other avenues also for candidates who are pursuing medical courses such as teaching, research etc. other than practising in surgical and clinical faculties which persons who do not have even the upper limbs are successfully doing. That apart, it cannot be said that a person who is not able to physically examine a patient cannot be a doctor, for having regard to the technological advancements achieved in the field of medicine especially during the last couple of decades, there would be umpteen replacements for physical examination in the years to come._
_In the result, the writ petition is allowed and the interim order passed by this Court dated 07.12.2020 directing the eighth respondent to admit the petitioner to the MBBS Course is made absolute.”_
13. The above observation is made by the learned Single Judge considering the facts and circumstances of that case. The same cannot be accepted as a dictum applicable in all other cases. The facts in the present case is entirely
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different. Two Medical Boards examined the petitioners in these cases and found that they are not eligible for pursuing medical courses. In such circumstances, I am not in a position to reject those reports and grant the relief. Therefore, there is no merit in these cases.
Accordingly, these writ petitions are dismissed.
Sd/-
**P.V.KUNHIKRISHNAN JUDGE**
DM
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## **APPENDIX OF WP(C) 24366/2023**
PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY MEDICAL AUTHORITY, MALAPPURAM DATED 28.03.2023 EXHIBIT P2 THE TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED BY RESPONDENT NO.6 DATED 28.03.2023 EXHIBIT P3 THE TRUE COPY OF THE HIGHER SECONDARY EXAMINATION MARK SHEET DATED 15.07.2020 EXHIBIT P4 THE TRUE COPY OF THE ADMIT CARD BEARING APPLICATION NO. 230411507353 DATED 04.05.2023 EXHIBIT P5 THE TRUE COPY OF THE NEET-UG 2023 SCORE CARD PUBLISHED ON 13.06.2023 EXHIBIT P6 THE TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED NOTIFYING THE AMENDED REGULATION ISSUED BY THE MEDICAL COUNCIL OF INDIA IN EXERCISE OF THE POWERS CONFERRED BY SECTION 33 OF THE INDIA MEDICAL COUNCIL ACT, 1956 DATED 04.02.2019 EXHIBIT P7 THE TRUE COPY OF THE RELEVANT PAGES OF THE INFORMATION BULLETIN FOR ADMISSION TO UNDERGRADUATE MEDICAL COURSES EXHIBIT P8 THE TRUE COPY OF THE OFFICE MEMORANDUM GUIDELINE FOR CONDUCTING WRITTEN EXAMINATION FOR PERSONS WITH "BENCHMARK DISABILITIES" DATED 29.08.2018
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EXHIBIT P9 THE TRUE COPY OF THE RELEVANT PAGES OF THE INFORMATION BULLETIN AND COUNSELING SCHEME OF NEET - UG 2023 PUBLISHED BY THE RESPONDENT NO.3
EXHIBIT P10 THE TRUE COPY OF THE CERTIFICATE OF DISABILITY FOR NEET ADMISSIONS DATED 15.07.2023
EXHIBIT P11 THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT IN ASHWATHY.P V. UNION OF INDIA AND ORS ( WP (C) 27225 OF 2020
EXHIBIT P12
THE TRUE COPY OF THE ARTICLE PUBLISHED IN DNA DATED 20.08.2018
EXHIBIT P13
THE TRUE COPY OF THE TENTATIVE SCHEDULE FOR ONLINE COUNSELING (ALLOTMENT PROCESS) PUBLISHED IN THE ONLINE PORTAL OF THE RESPONDENT NO.3
W.P.(C). Nos. 24471 & 24366 of 2023
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## **APPENDIX OF WP(C) 24471/2023**
PETITIONER EXHIBITS
EXHIBIT -P1 THE TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY MEDICAL AUTHORITY, KOTTAYAM DATED 18.01.2023 EXHIBIT-P2 THE TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED BY RESPONDENT NO.6 DATED 18.01.2023 EXHIBIT-P 3 TRUE COPY OF THE NON CREAMY LAYER CERTIFICATE BEARING NO 74706833 CERTIFIED BY THE COMPETENT AUTHORITY EXHIBIT-P 4 THE TRUE COPY OF THE HIGHER SECONDARY EXAMINATION MARK SHEET DATED 22.07.2022 EXHIBIT -P5 THE TRUE COPY OF THE ADMIT CARD BEARING APPLICATION NO. 230410077576 DATED 08.02.2023 EXHIBIT -P6 THE TRUE COPY OF THE NEET-UG 2023 SCORE CARD PUBLISHED ON 13.06.2023 EXHIBIT -P7 THE TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED NOTIFYING THE AMENDED REGULATION ISSUED BY THE MEDICAL COUNCIL OF INDIA IN EXERCISE OF THE POWERS CONFERRED BY SECTION 33 OF THE INDIA MEDICAL COUNCIL ACT, 1956 DATED 04.02.2019 EXHIBIT -P8 THE TRUE COPY OF THE RELEVANT PAGES OF THE INFORMATION BULLETIN FOR ADMISSION TO UNDERGRADUATE MEDICAL COURSES EXHIBIT -P9 THE TRUE COPY OF THE OFFICE
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MEMORANDUM GUIDELINE FOR CONDUCTING WRITTEN EXAMINATION FOR PERSONS WITH "BENCHMARK DISABILITIES" DATED 29.08.2018
EXHIBIT -P10
THE TRUE COPY OF THE RELEVANT PAGES OF THE INFORMATION BULLETIN AND COUNSELING SCHEME OF NEET - UG 2023 PUBLISHED BY THE RESPONDENT NO.3
EXHIBIT-P 11
THE TRUE COPY OF THE NOTICE ISSUED TO PWD CANDIDATES OF NEET UG 2023 BY RESPONDENT NO.3 DATED 05.07.2023
EXHIBIT -P12
THE TRUE COPY OF THE CERTIFICATE OF DISABILITY FOR NEET ADMISSIONS DATED 15.07.2023 ISSUED BY RESPONDENT NO.5
EXHIBIT -P13
THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT IN ASHWATHY.P V. UNION OF INDIA AND ORS ( WP (C) 27225 OF 2020
EXHIBIT -P14
THE TRUE COPY OF THE ARTICLE PUBLISHED IN DNA DATED 20.08.2018
EXHIBIT-P 15
THE TRUE COPY OF THE TENTATIVE SCHEDULE FOR ONLINE COUNSELLING (ALLOTMENT PROCESS) PUBLISHED IN THE ONLINE PORTAL OF THE RESPONDENT NO.3
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE