srk １ wp-L-2187-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.2187 OF 2010 Ms. Ankita Avinash Jangam ... Petitioner Versus Directorate of Medical Education & Research (DMER) and others. ... Respondents Mr. N.N. Shah with Ms. Pervin D. Contractor, Ms. Naazish N. Shah, Ms. EMA Almeida and Mr. Sayed Zia i/by Mr. A.K. Gupta for the petitioner. Mr. D.A. Nalawade, Government Pleader with Ms. Geeta Shastri, Assistant Government Pleader for State-respondent Nos.1,2 and 4. Dr,. D.R. Sharma, Special Counsel with Mr. Abhijit Desai for respondent Nos.3 and 5. CORAM : MOHIT S. SHAH, C.J. & DR. D.Y. CHANDRACHUD, J. Tuesday, September 28, 2010 P .C. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the rejection of the candidature of the petitioner for BDS course in physically handicapped category. 2. The rules for admission to medical/dental colleges at Exhibit `H' of the petition issued by the Director of Medical Education and Research as contained in Annexure `D' to the information brochure read as under: "1) As per Graduate Medical Education Regulation 1997 and Amendment Notification No. MCI-34(41)/2008-Med/54469 Dated 25th March 2009, and MCI guidelines letter No. MCI-34(1)/2003-Med/11773, dated 14.7.2003 following is the criteria for reservation under Physically Handicapped srk ２ wp-L-2187-10 Category. "3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%. Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates. Provided further that this entire exercise shall be completed by each medical college/institution as per the statutory time schedule for admissions and in no case any admission will be made in the Medical course after 30th of September" 2) The Candidate with a disability more than 70% will not be eligible for admission to Health Sciences Courses. No other disability shall be allowed as per the MCI regulations. However, such a candidate will be required to undergo medical examination by a Special Medical Board constituted for this purpose by the Competent Authority. The Medical Board after ascertaining his/her disability must be satisfied that the candidate is physically fit to undergo the course despite his/her disability. 3) Candidate is required to submit the proof of his/her disability by way of a certificate (issued in the year 2010) in prescribed proforma from Civil Surgeon of a District Hospital/Medical Board/Medical Superintendent of a Government Medical College/Hospital in Maharashtra; or from the Director of All India Institute of Physical Medicine and Rehabilitation, Haji Ali, Mumbai; (as per Prescribed Proforma) at the time of verification of disability. Verification of the disability will be carried out by Special Medical Board constituted for this purpose by Competent Authority. The date and place of Special Medical Board shall be communicated by the way of notification." srk ３ wp-L-2187-10 3. For the purposes of showing her eligibility in physically handicapped category, the petitioner produced certificate dated 4 June 2010 issued by the Additional Director of the All India Institute of Physical Medicine & Rehabilitation, certifying that petitioner had 55% disability pertaining to locomotory disorder of the lower limbs. As per the above guidelines, however, the petitioner is having the requisite degree of disability and the satisfaction that the candidate is physically fit to undergo the course despite her disability is to be taken by the said medical board constituted by the State Government. When the petitioner appeared before the Special Medical Board at Mumbai, the petitioner's disability of the lower limb was assessed at 35% and, therefore, on the ground that the petitioner's disability of a lower limb was less than 20%, the petitioner was found not eligible for physically handicapped quota as claimed. The petitioner challenged the decision dated 21 July 2010 by filing Writ Petition (Lodging) No.1884 of 2010 which came to be disposed of by us by directing the respondents that the question about percentage of locomotory disability shall be determined by the Special Board at B.J. Medical College, Pune without being influenced by the certificate dated 6 July 2010 of the Medical Board of Grant Medical College, Mumbai. The petitioner, accordingly, appeared before the Special Medical Board at Pune which indicated the following disabilities in the impugned certificate dated 3 September 2010 at Exhibit `N'. The petitioner is an individual with 62% (62 percent permanent locomotory disability of UL+ both lower limbs. The candidate is found to have following disabilities: Upper limb disabilities - 20% Triceps, Deltoid, Rhombord weak srk ４ wp-L-2187-10 The certificate further provides that Becker's muscular disorder is progressive disorder. This remark was made in the first column to indicate whether there is "absence of any incapacitating and/or progressive systemic disease/disorder condition" Again column No.7 in the said certificate reads as under: "Any other physical disability which incapacitate the candidate to pursue health science course "upper limb 20% disability and progressive nature. The certificate further mentions that the petitioner is medically unfit to undergo the professional training course in spite of her clinical condition diagnosed as Becker's muscular dystrophy, and in the last column the remark is as under: "Any other illness/disability - Upper limb 20% disability and progressive disorder. The certificate is signed by President with five members of the disability Medical Board, Pune. 4. It is the aforesaid certificate and the consequential decision of the respondent-authorities considering the petitioner as not fit for admission to the physically handicapped quota in the BDS course which is challenged in this petition under Article 226 of the Constitution of India. srk ５ wp-L-2187-10 5. The learned counsel for the petitioner submits that when the institutions i.e. All India Institute of Physical Medicine and Rehabilitation and the Special Medical Board, Mumbai have held that the petitioner is otherwise fit for pursuing the Health Science Course, the petitioner should not be denied admission to the physically handicapped quota on the basis of the impugned certificate dated 3 September 2010. It is submitted that this Court had required the Special Medical Board, Pune to examine the disability of the petitioner in the lower limbs and that a Special Medical Board had no authority to comment on any other disability. Therefore, the Special Medical Board, Pune was not required to examine the disability of the upper limbs. 6. Reliance is also placed on the list of candidates who were applied for physically handicapped quota and published on 16 July 2010 where the petitioner is shown as being medically fit for pursuing the course but not considered eligible on the ground that the percentage of disability is less than 50%. 7. On the other hand, the learned Government Pleader has submitted that as the five members Medical Board, Pune have already given certificate to the effect that the petitioner is not fit for pursuing the Health Science Course, this petition may not be entertained. The learned Government Pleader has also relied upon the circular dated 14 July 2003 containing the guidelines of the srk ６ wp-L-2187-10 Medical Council of India for filling up the reserved seats for persons having locomotory disabilities for admissions in medicine courses. Particular reference is made to the following portion of the guidelines dated 5 July 2001: ".............. In view of the above observations the visually handicapped and hearing disabled should be deleted from this category and they should be considered invalid for admission in the MBBS. Among the locomotory disabled the upper limb should be functional & normal as it is required to elicit sign during clinical examination and finer movements are desired for conduct of surgical procedure. Again the feeling and the sensation are important for clinical diagnosis and the treatment an d locomotory disabled involving upper limb should be considered not eligible for admission to the professional medical course. The locomotory disabled involving the lower limb is permissible but it should be with the following guidelines." 3. If it involves only one lower limb it should have a minimum of 40% and should not exceed 60%. 4. If it involves both the lower limbs the total disability should not exceed 60% with a minimum of 40%. The disability certificate should be produced by a duly constituted and authorised Medical Board. The candidates should have minimum eligibility criteria as per MCI guidelines. The candidates should be otherwise fit medically. Those candidates who are aspiring to get seats under this reservation category should apply specifically along with the valid disability certificate." 8. Relying on the aforesaid guidelines, it is submitted that the petitioner is having 20% disability of upper limbs with disability of progressive nature. srk ７ wp-L-2187-10 9. The learned counsel for the Union of India has also supported the stand of the State Government. 10. Having heard the learned counsel for the parties, we find that five members Special Medical Board, Pune has found the petitioner as not fit for prosecuting any medical course in view of 20% disability of the upper limbs and the disability which is found is of progressive nature. Hence we cannot entertain the petitioner's request to hold that the petitioner is fit in prosecuting the dental course. In exercise of our jurisdiction under Article 226 of the Constitution of India, we cannot substitute our opinion for the opinion of expert body i.e. Special Medical Board, Pune, though a Special Medical Board at Mumbai had certified the petitioner to be 35% of disability of lower limb and that the petitioner is otherwise fit for prosecuting the medical course. 11. Be that as it may, it appears that the Special Medical Board at Mumbai did not examine the petitioner with the care which ought to have been bestowed by an expert body and it is for that reason, the petitioner had the expectations of securing admission to the BDS course and had challenged that portion of certificate dated 6 July 2010 of the Special Medical Board at Mumbai which had certified the petitioner's disability to be 35% only. Hence, while dismissing the petition, we saddle respondent Nos.1 and 4 with costs of this petition which are quantified at Rs.10,000/-, and shall be paid to the petitioner within one month from today. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.