IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.06.2011 Coram : THE HONOURABLE MR. JUSTICE P.JYOTHIMANI Writ Petition No.8778 of 2011 & M.Ps. Nos.1 to 4 of 2011 Dr. S.Kavitha Petitioner v. 1. The State of Tamil Nadu, represented by the Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai 600 009. 2. The Director of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai 600010. 3. The Secretary, Selection Committee, Directorate of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai 600010. 4. The Secretary, Medical Council of India, Pocket 14, Sector 8, Dwaraka, New Delhi 110077. Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus calling for the relevant records pertaining to the prospectus for the Post Graduate Degree / Diploma / MDS / 6 year M. Ch (Neuro Surgery) Courses for the year 2011-2012 issued by the third respondent and quash the same in so far as clause 57(2) of the prospectus restricting the disability to lower limbs only is concerned and thereby direct the respondents to accept the petitioner's candidature with entrance examination registration number 71688 for the above courses. For Petitioner : Mr. A.R.Suresh For Respondents 1 to 3 : Mr.E.Sampath Kumar, Special Government Pleader For Respondent 4 : Mr. V.P. Raman https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petitioner has stated in the affidavit filed in support of the petition that she has completed her graduation in medicine on having obtained admission in 3% quota reservation for persons with disability. After completion of the graduation in medicine, it is stated that she has joined in Government service as Assistant Surgeon, Upgraded Primary Health center, Burgur. She has applied for admission into post graduate course in medicine claiming admission under the quota of disabled persons prescribed by the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as 'the Act'), for the academic year 2011-12. Admittedly, 3% of seats are allotted to persons with disabilities for admission into post graduate courses. 2. The grievance of the petitioner is that even though she has complied with the requirements of the reservation under the quota for disabled persons, and even though the certificate produced by her issued by the Medical Board, Government Mohan Kumaramangalam Medical College Hospital, Salem shows that she was having permanent disability, viz., Kyphoscoliosis with torticollis deformity of the spines and the extent of disability is 50%, at the time of counselling, since the respondents entertained doubt about her claim of admission under the Physically Handicapped quota, she, along with many others, who raised similar claims, was referred to the Special Medical Board, by proceedings of the Director of Medical Education dated 25.03.2011. The Special Medical Board, which consisted of the Head of Department of the Orthopaedics, Stanley Medical College and Hospital, the Associate Professor of Kilpauk Medical College and Hospital, and Professor of Neurology, Madras Medical College and Hospital, after examining nearly 27 candidates about whom doubts were entertained by the Selection Committee, have found that the petitioner's lower limb and the upper limb are normal and therefore, she cannot claim admission under disability quota and consequently her claim for admission into the post graduate course came to be rejected. 3. It is under these circumstances, the petitioner, having participated in the counselling, has filed the present writ petition challenging clause 57(2) of the prospectus, which reads as under: (2) a. Candidates with any other disability other than the locomotory disability of the lower limb will not be considered for admission into PG Degree / Diploma / MDS / 6 Year M. Ch. (Neuro Surgery) course under this Special Category. b. Upper limb, vision and hearing should be normal. 4. The contention of the learned counsel for the petitioner, as stated in the affidavit filed in support of the writ petition, is that as per the MCI Regulations, 3% of seats of the annually https://hcservices.ecourts.gov.in/hcservices/ sanctioned intake capacity shall be filled up by the candidates with locomotory disability of lower limbs between 50% to 70%. According to the petitioner, the certificate issued by the local medical authorities which consisted of eminent doctors in Salem shows that she is medically disabled and therefore, as per the provisions of the Act, the benefit has to be conferred on her. His contention is that when the term 'disability' is defined under the Act, there is no reasonable justification to restrict the benefits conferred only to persons who have locomotory disabilities. According to him, even though there is no locomotory disability in the strict sense of law, the writ petitioner is suffering from a disease which relate to the spinal cord and therefore, according to him, it should also be included as a disability and the relevant clause in the prospectus is unfair and against the spirit of the Act. 5. On the other hand, the Medical Council has filed a counter affidavit. It is also the submission of Mr. V.P. Raman, the standing counsel for MCI that the MCI has only directed 3% of seats to be given to the persons suffering from locomotor disability in the lower limb between 50% to 70%, which is according to the provisions of the Central Act and there is no contradiction. Admittedly, the petitioner is not suffering from any disability either in the lower limb or in the upper limb. Therefore, the contention of the learned counsel for the petitioner has no meaning. 6. Section 2(o) of the Act read as follows : "locomotor disability' means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy." Section 50 of the Act enables the State Government to appoint any authority to be a competent authority for the purposes of the Act. 7. In the proceedings issued by the second respondent - the Director of Medical Education relating to admission to special category, especially relating to the seats reserved for physically disability candidates, clause 57 has been inserted in the prospectus, which is as follows : 57. Seats reserved for physically disabled candidates: 3% of the total number of seats available in Government Medical / Dental Institutions are reserved for the Physically disabled candidate (only for locomotory disabilities of lower limbs). In the first instance, candidates with disability of lower limbs between 50% to 70% shall be considered and in case candidates not available in that category then the candidates with 40% to 50% locomotory disabilities of the lower limbs will be considered. The other conditions for admission into PG Degree / Diploma / MDS / 6 year M. Ch. (Neurosurgery) courses will be applicable as in the case of the general category. https://hcservices.ecourts.gov.in/hcservices/ The candidates are required to produce a certificate from the Medical Board of the Medical College of the area concerned constituted for the purpose of assessing the nature and the extent of disability in the format prescribed in the Annexure-IV (A & B). The Medical Certificate issued by the Medical Board of the Medical College of the area concerned for this purpose is subject to the confirmation by the Expert Committee constituted by the Director of Medical Education at the time of counselling. The candidates seeking admission under this category should produce a full size photograph exhibiting the deformity. Note : - 1. The selected candidates for PG Degree / Diploma / MDS / 6 Year M. Ch. (Neuro surgery) courses will be required to undergo a second Medical Examination by a Medical Board constituted for the purpose by the Director of Medical Education to ascertain and confirm the nature and extent of physical disability. (2) a. Candidates with any other disability other than the locomotory disability of the lower limb will not be considered for admission into PG Degree / Diploma / MDS / 6 Year M. Ch. (Neuro Surgery) course under this Special Category. b. Upper limb, vision and hearing should be normal. (3) The decision of the Director of Medical Education in this regard will be final. 8. It is clear, from a reading of the clause, that a person who applies for 3% quota reservation under the physically disabled category, a medical certificate issued by the Medical Board or the Medical college of the area concerned, has to be enclosed. It is true that the petitioner enclosed such certificate, but the terms of the clause also shows that such certificate should be confirmed by the expert committee constituted by the Director of Medical Education at the time of counselling. It is based on such power of the second respondent, the second respondent has constituted a special Committee, which consisted of three doctors out of whom one is specialised in Orthopaedic, and another in neurology, apart from the Assistant Professor of Kilpauk Medical College. Admittedly, the petitioner was examined by the authorities and they came to the conclusion that she was coming nowhere near the disability prescribed under the Act. There is absolutely nothing to interfere with the provisions of the impugned proceedings. 9. It is also brought to the notice of the Court by the learned Government Pleader for Education that the First Bench of this Court in the case of Dr. Revathi v. The State of Tamil Nadu in W.A. No.309 of 2011, by judgment dated 24.11.2010 has in fact considered the validity of clause 57 of the Prospectus and ultimately held that the said clause cannot be held to be arbitrary. The relevant portion read as follows : https://hcservices.ecourts.gov.in/hcservices/ ".... Thus, it is clear that the appellant's case cannot be considered in view of the specific embargo contained in clause 57 of the Prospectus. In fact, clause 57 of the Prospectus is based on the notification issued by the Medical Council of India in their proceedings dated 14.07.2003. It is a trite law that the notification issued by the Medical Council of India is binding not only on the respective States and the Selection Committees, but also candidates who are applying for the course of study. The appellant, admittedly, accepted the prospectus and applied for the course and cannot now turn around and state that the condition in the prospectus has to be either ignored or relaxed." 10. In view of the reasons stated in the foregoing paragraphs, the writ petition has no merit and is accordingly dismissed. No costs. Consequently the connected miscellaneous petitions are dismissed. mf Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai 600 009. 2. The Director of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai 600010. 3. The Secretary, Selection Committee, Directorate of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai 600010. 4. The Secretary, Medical Council of India, Pocket 14, Sector 8, Dwaraka, New Delhi 110077. + 1 cc to Mr. A. R. Suresh, Advocate SR No.38149 Writ Petition No.8778 of 2011 & M.Ps. Nos.1 to 4 of 2011 RK(CO) SR/7.7.2011 https://hcservices.ecourts.gov.in/hcservices/