Yadav S. Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **WP(C).No.20760 OF 2020(T)** ## **PETITIONER:** **YADAV S. NAIR, AGED 18 YEARS, S/O.LATE SUMESH, LEKSHMY VILLA, NEDUNGALAM P.O., PARAVUR, KOLLAM-691 001.** **BY ADVS. SRI.SHABU SREEDHARAN SHRI.NITIN RAJAN NAIR SMT.ANJANA G. SHRI.JOBIN JOSE P. SMT.REMYA GILBERT** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** - **3 THE MEDICAL BOARD, REPRESENTED BY THE CHAIRMAN AND SUPERINTENDENT, GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOLLAM (ESIC PARIPPALLY), PARIPPALLY, KOLLAM-691 574.** **BY ADV. SMT.VINITHA.B, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20760 OF 2020(T)** **2** ## **JUDGMENT** **The petitioner has filed this writ petition aggrieved by the non-inclusion of his name in the category list of Persons with Disability for admission to Engineering Degree courses through entrance examination after getting qualified in the KEAM, 2020 with rank no.5356.** **2. Producing Ext.P3 Disability Certificate** **issued by the District Medical Board on 13.07.2007 and Ext.P4 Unique Disability ID card, petitioner claims that he is having 50% disability with acute low vision and that his non-inclusion in the category list of Persons with Disabilities is illegal.** **3. Sri. V. Manu, the learned Senior Government Pleader points out that Clause 5.3 of Ext.P5 prospectus for admission to Professional Degree Courses, 2020, provides for the procedure** **WP(C).No.20760 OF 2020(T)** **3** **for claiming reservation under PWD category, according to which the certificate 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 and the criteria for inclusion in the category list of candidates in PWD quota is based on the results of the assessment made by the State Medical Board. In the case of the petitioner, the State Medical Board examined him. The learned Senior Government Pleader made available the proceedings of the State Medical Board, which after examining the petitioner, assessed his disability at 30%. The petitioner does not dispute the fact that he was subjected to examination by the State Medical Board. The minimum requirement for inclusion is 40%.** **4. The learned Government Pleader points** **WP(C).No.20760 OF 2020(T)** ## **4** **out that admissions are made after categorisation, made on the basis of the decision taken after assessment by the State Medical Board in the case of persons with disability. Relying on the judgment of the Division Bench of this Court in** _**Aswathy P. (Minor) v. State of Kerala and Others**_ **[2011 KHC 2364], the learned Government Pleader argued that this Court has upheld the categorisation based on assessment by State Medical Board. He also relied on the judgments in W.P.(C) No.23315/2018 and thereafter in W.P.(C) No.16743/2019, where the contentions raised in the light of the Persons with Disabilities Act, 2016 were also considered. Learned Government Pleader also points out that the Ministry of Social Justice and Empowerment, Government of India has as per S.O.76(E) dated 04.01.2020 issued the guidelines for evaluation as well as the procedure for certification of various** **WP(C).No.20760 OF 2020(T)** **5** **specified disabilities. Clause 19 thereof deals with visual imparement and subclause 3 thereof provides for the criteria for certification, gradation, etc of visual impairment.** **5. From the judgment in** _**Aswathi's**_ **case supra, it is seen that clause 5.3 of the prospectus for admission to Professional Degree Courses for the academic year, 2010 (Clause 5.3 itself), which the Divsion Bench considered therein also provided for constitution of a State Level Committee for assessment of the persons with disability for the purpose of admission against the quota reserved for persons with disability, as in the present case. Paragraphs 16 and 17 of the judgment, the Division Bench held as follows:** _**“16. We regret our inability to accept the submission made by the learned counsel for the appellant. As already indicated, we proceed on the basis that**_ **WP(C).No.20760 OF 2020(T)** **6** _**Ext.P1 certificate was issued by a validly constituted Medical Board contemplated under R.4 of the abovementioned Rules. Even then, we are of the opinion that there is nothing in the law which prohibits the State from constituting another body either to crosscheck the correctness of the certificate issued by the Medical Board constituted under R.4 of the above mentioned Rules or otherwise to independently examine the disability of a candidate seeking any one of the benefits contemplated under the Act. 17. The expression 'medical authority' as defined under S.2(p) of the Act means a hospital or institution specified for the purposes of this Act by a notification by the appropriate Government. In our opinion, the definition is capable of permitting the Government to constitute more than one medical authority depending upon the purposes of such verification. Apart from that nothing, either in the Act or in any other law, prohibits the State from taking such steps as the State deems it necessary to crosscheck the correctness of the certificates issued by a body which is otherwise competent to issue such certificates under any**_ **WP(C).No.20760 OF 2020(T)** **7** _**law. Such an exercise is obviously undertaken in the larger public interest of ensuring a fair and proper administration of law and the same cannot be held to be illegal unless specifically prohibited by any law. No such prohibition has been brought to our notice in the context of the case.”**_ **6. It is seen that the provisions in the prospectus which were considered by this court in** _**Aswathi's**_ **case as well as the provisions contained in Clause 5 of the prospectus 2020 are more or less similar. Relevant portion of Clause 5.3 of the prospectus considered in the judgment in** _**Aswathi's**_ **case read as follows:** _**“5.3. Reservation for Persons with Disabilities (PD):**_ _**(i) Three per cent of the seats available to the State for allotment from the State rank lists are reserved for candidates with disabilities for all courses in Government/Government Controlled Self Financing Colleges as stipulated in S.39, Chapter VI of the Persons with Disabilities Act, 1995. As per Cl.2(t), Chapter I of the Act, 'Person with**_ **WP(C).No.20760 OF 2020(T)** **8** _**Disability' means a person suffering from not less than 40% of any disability as certified by a 'medical authority'. Generally, candidates who have a minimum of 40% disability alone will be eligible to apply for this quota. Candidates seeking admission, will have to satisfy the eligibility criteria prescribed by the concerned regulatory bodies for 'Persons with Disabilities'.”**_ _**xxx**_ _**(iv) A State Level Committee to be constituted by the Government under the Chairmanship of the Director of Medical Education consisting of medical experts in General Medicine, ENT, Neurology, Orthopedic Surgery, Ophthalmology, Psychiatry, and Physical & Rehabilitation Medicine will examine and assess the disability of the candidates who are provisionally included under this Category. Necessary orders constituting the Committee will be issued by the Government in due course and the same will be notified. The State Level Committee will have powers to review the Certificates issued by the District Medical Boards.**_ _**(v) There will be special invitees representing Pharmacy, MLT, Nursing, Physiotherapy and Opthomology specialities to this Committee in addition to Medical Experts who will subsequently determine the suitability of a candidate, having minimum 40% of any disability, for a particular course.”**_ **WP(C).No.20760 OF 2020(T)** **9** _**7**_ **. The aforesaid provisions were considered with reference to the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1995, which were then in force. The provisions in clause 5.3 of the prospectus for the year 2020-21 is in tune with the provisions under the Right of Persons with Disabilities Act, 2016. Clause 5.3 of the prospectus for admission in 2020-21 read as follows:** **“Five per cent 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 Government/Aided Colleges as stipulated in Section 32, Chapter VI of the Persons with Disabilities Act, 2016. As per Cl.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** **WP(C).No.20760 OF 2020(T)** **10** **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 (except BHMS courses), 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 candidates will have to satisfy the eligibility criteria prescribed by the Central Council of Homoeopathy (see Annexure XXIV(ii).** **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 has to be produced at the time of medical verification. No document/certificate is to be uploaded to the online application.** **The State Medical Board constituted by Government under the Chairmanship of the DME consisting of Medical experts in General Medicine, ENT, Nuerology, Orthopaedic Surgery, Ophthalmology, Psychiatry and Physical Medicine & Rehabilitation, will examined the degree of Physical disability of the** **WP(C).No.20760 OF 2020(T)** **11** **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 Examination consisting of the members of 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 council s and the suitability of the candidate to studey a particular course applied by him/ her. Necessary orders constituting State Level Committee will be issued by Government in due course and the same would be notified. Only those candidates who are having 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 recommendation of the State Level Committee will be binding on the candidates. The selection of the candidates under this category will be based on the merit in the Entrance examination and physical suitability** **WP(C).No.20760 OF 2020(T)** **12** **and on the basis of degree of disability. The Commissioner for Entrance Examination will prepare and publish the list of candidates eligible under PWD quota based on the recommendation of the State Level Committee.”** **8. Under the Right of Persons with Disabilties Act 2016, the definition of persons with benchmark disabiltiy and of persons with disability are the following:** _**“S.2 (r) “person with benchmark disability” means a person with not less than forty per cent. 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;**_ - _**(s) person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;”**_ **9. As per sub clause 4 clause 19 of the guidelines issued by Ministry of Social Justice** **WP(C).No.20760 OF 2020(T)** **13** **and Empowerment, Government of India as per S.O.76(E) dated 04.01.2020, the medical authority which certifies the disability shall comprise of one ophthalmologistand certificate shall be countersigned by the Medical Superintendent or Chief Medical officer or Civil Surgeon or any other equivalent authority as notified by the State Government. The assessment is made by the State Medical Board constituted in tune with the provisions in the prospectus read with the PWD Act 2016 and there is no prohibition in the Act and rules for constituting such a Medical Board. Therefore the judgment in** _**Aswathi's**_ **case squarely applied to the present case.** **10. Though the petitioner claimed the benefit based on Ext.P4 Unique ID card in support of his claim, there is nothing to show that it can have any relevance superior to the assessment made by the State Medical Board superseding the provisions** **WP(C).No.20760 OF 2020(T)** **14** **in the prospectus.** **Moreover the petitioner has not even challenged the provisions in the prospectus. Going by clause 5.3 of the prospectus, the State Medical Board is the authority to assess disability of the candidates for admission to the Professional Degree Courses. When it has found that petitioner is having only 30% disability and when the minimum eligibility criteria for inclusion in the category list of PWD is 40%, the non-inclusion cannot be said to be illegal. Therefore petitioner does not deserve any relief in this writ petition.** ## **Accordingly, the writ petition is** **dismissed.** **Sd/P.V.ASHA JUDGE** WW **WP(C).No.20760 OF 2020(T)** **15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE BOARD OF HIGHER SECONDARY EXAMINATION, GOVT. OF KERALA, DATED 15.07.2020.** **EXHIBIT P2 THE TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE CHAIRMAN AND SUPERINTENDENT OF DISTRICT HOSPITAL, KOLLAM DATED 13.07.2007.** **EXHIBIT P3 THE TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL AUTHORITY, KOLLAM KERALA COMING UNDER THE DEPT. OF EMPOWERMENT OF PERSONS WITH DISABILITIES, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, GOVT. OF INDIA DATED 13.07.2007.** **EXHIBIT P4 THE TRUE COPY OF THE UNIQUE DISABILITY ID OF THE PETITIONER ISSUED BY THE GOVT. OF INDIA DATED 07.02.2020.** **EXHIBIT P5 THE TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES DATED 30.01.2020.** **EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P7 THE TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION OF KEAM 2020 DATED NIL.**