IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition No.15557 of 2009 and M.P.Nos.1 and 2 of 2009 K.Kuralarasan ..Petitioner ..vs.. 1. The Secretary to Government, Education Department, Secretariat, Chennai-600 009. 2. The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3. The Director of Medical Education, Kilpauk, Chennai-600 010. (*)4. The Medical Council of India, New Delhi - 110 002. ..Respondents (R-4 impleaded as per Order dated 25.08.2009 in M.P.No.3/2009 in W.P.No.15557/2009) Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent relating to 42(iv) of the instructions in the prospectus for M.B.B.S./ B.D.S.admissions for 2009/2010 issued by the 2nd respondent so far as the constitution of the expert committee for confirming the certificate issued by the District Medical Board is concerned, quash the same and direct the respondents to admit the petitioner in M.B.B.S.Course in the quota reserved for the physically handicapped. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mrs.Hema Sampath, Senior Counsel for Mr.N.Rajavadivelu For Respondents : Mr.G.Sankaran, Spl.G.P., assisted by Ms.Dhakshayani Reddy, G.A., for R1 to R3 Mr. V.P. Raman for R4 ORDER The writ petitioner challenges the Clause 42(iv) of the Instructions in the prospectus for M.B.B.S./B.D.S. admissions for 2009-10 issued by the second respondent in so far as it relates to the constitution of the Expert Committee for confirming the certificate issued by the District Medical Board and also for direction to admit the petitioner in M.B.B.S. Course in the quota reserved for the physically handicapped persons. 2. The petitioner, who belongs to Most Backward Class, is stated to suffer from 60% locomotor disability, which is stated to have been caused due to an accident that took place when the petitioner was 7 years old, by which his left leg was run over by a jeep, resulting in such permanent disability. The petitioner's father is a farmer and the petitioner is the first generation literate in the family. He secured 1048 marks out of 1200 in Higher Secondary Examinations held in April, 2009. He applied for both Medical and Engineering Courses. 2(a). As per the prospectus 3% of seats are reserved for physically disabled candidates and the candidates with disability of 50% to 70% of lower limbs would be considered first and after that, if the seats are still available, then the candidates with disability of 40% to 50% would be chosen and the candidates are to produce a certificate from the District Medical Board regarding the extent of disability. 2(b). As per the terms of prospectus, the said certificate is subject to confirmation during counselling by the Expert Committee constituted by the Directorate of Medical Education. Forty five seats are reserved for handicapped in the Government Medical Colleges. The District Medical Officer, Cuddalore, after examining the petitioner, issued a certificate that he is suffering from 60% disability. 2(c). According to the petitioner he was in 10th place in the rank list of handicapped candidates based on his marks and ability, however, the petitioner was not selected on the basis that the Expert Committee assessed his disability at 25%. According to the petitioner, he was not physically examined and the decision arrived https://hcservices.ecourts.gov.in/hcservices/ at by the Expert Committee is arbitrary. It is also stated that in Anna University, wherein he attended the counselling for Engineering college admission, the Selection Committee and the Medical Board concurred and accepted the petitioner's disability as 60%. 2(d). Since the petitioner was not selected for M.B.B.S. course, he filed W.P.No.13809 of 2009 for direction against the second respondent to select him. It was at the time of admission of the writ petition, the certificate issued by the M.B.B.S. Medical Board showing that the petitioner was having 25% disability was furnished and therefore, the said writ petition was dismissed on 23.7.2009, against which the petitioner filed a writ appeal in W.A.No.1055 of 2009, which was also dismissed as withdrawn on 30.7.2009. Thereafter, the present writ petition is filed challenging the above said Clause in the prospectus. 3. The said Clause 42(iv) in the prospectus is challenged on various grounds including, that the said Clause is opposed to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, "the Act"); the Medical Board constituted by the Director of Medical Education cannot sit over the certificate issued by the competent notified authority, viz., the District Board as per the provisions of the said Act; that Section 2(t) of the said Act provides that a person with disability will be deemed to be a person suffering from disability not less than 40% as certified by the Medical Authority and the Medical Authority as notified by the Government, as per the Rules framed under the Act, is alone competent to decide the disability. 3(a). It is also the case of the petitioner that the said Clause is opposed to the directions issued by the Medical Council of India. By virtue of the Clause, the avowed object of the above said Act is taken away. It is also stated that against the 45 seats reserved for physically handicapped category, only 34 applications were received from physically handicapped persons and by surrendering the remaining seats to the general pool, the legitimate rights of the persons like, the petitioner are being denied. 4. In the counter affidavit filed by the respondents it is admitted that the petitioner belongs to Most Backward Class and he applied for M.B.B.S./B.D.S. admission for the year 2009-10 and he secured 170.75 marks as aggregate and his Register number is 10326. According to the respondents, the petitioner applied under physically handicapped category and he was placed in 8975th position in the first phase of counselling and he did not come within the zone of consideration. https://hcservices.ecourts.gov.in/hcservices/ 4(a). The petitioner was referred to the Medical Board constituted by the Director of Medical Education on the date of counselling as per Clause 42(iv) of the prospectus. As far as physically handicapped persons are concerned, such persons with disability of lower limbs between 50% and 70% shall be considered first and in case such candidates are not available, then candidates with disability of lower limbs between 40% and 50% will be considered. 4(b). The candidates are directed to produce certificate from the District Medical Board in the form prescribed in Annexure-III to the prospectus. The certificate issued by the District Medical Board is subject to confirmation by the Expert Committee constituted by the Director of Medical Education at the time of counselling. Therefore, even the selected candidates have to undergo second Medical examination by the Medical Board constituted by the Director of Medical Education to ascertain the nature of disability. 4(c). According to the respondents, the Committee examined the petitioner and found that the petitioner is having 25% disability and therefore, is not entitled to seek admission under special category as per Clause 42(iv) of the prospectus. It is stated that the remaining seats which were not filled up by the physically handicapped persons have been added to the general pool due to dearth of candidates and allotted to candidates in the general category on merit basis. 4(d). It is the case of the respondents that the Expert Committee assessed the disability as per the WHO guidelines, while the Medical Board has given only the percentage of defects. It is also stated that out of 34 candidates applied under the said physically handicapped category, nine candidates were with upper limb defects and nine candidates were with less than 40% disability while two candidates were with more than 70% disability. 4(e). It is stated that 14 candidates were found to be fit and out of the said 14 candidates four of them were with neurological defects who are fit without progressive disease. It is stated that WHO guidelines are separate for orthopaedic defects and neurological defects. 5. Mrs.Hema Sampath, learned senior counsel appearing for the petitioner would vehemently contend that the basis for providing 3% seats for physically challenged persons is the provisions of the Act 1/96 and while so, when the Act provides for the District Board to give certificate regarding disability, it is not open to the respondents to supervise the said certificate and any further testing will defeat the provisions of the Act. https://hcservices.ecourts.gov.in/hcservices/ 5(a). According to her, when certificate is issued by the competent authority, no other person can sit over the validity of the said certificate. She would rely upon the judgement in All Kerala Parents Association Hearing Imp. & another vs. State of Kerala [(2002) 7 Scale 198]. 5(b). As far as the conduct of the petitioner in taking part in selection process as per the contents of prospectus and then challenging the same is concerned, it is her submission that since the case of the petitioner is that the said Clause is opposed to the Central Act, there is no estoppel against the statute. She would rely upon the judgement in Dr.V.Ramalakshmi vs. The Director of Medical Education [1997(2) CTC 170] apart from the Calcutta High Court Division Bench Judgement in Deputy Secretary (Mart). Department of Health & Family Welfare vs. Sanchita Biswas [AIR 2000 Calcutta 202]. 6. On the other hand, it is the contention of Mr.G.Sankaran, learned Special Government Pleader (Education) that the Selection Committee is entitled to verify the correctness of the certificate issued only for the purpose of giving effect to the purpose of the Act and the benefit conferred under the Act should not be usurped by a person who is not eligible under the Act. 6(a). It is also contended that the prospectus itself has prescribed a format in the Annexure-III, in which the disability certificate has to be given and unless the disability certificate is given in the said format, it is certainly open to the respondents to insist for the examination of the candidates and on examination of the petitioner, it was found that the petitioner was having only 25% disability and therefore, he is not eligible as per terms of the prospectus. 6(b). It is his submission that the issue for admission in Engineering Colleges is totally different from that of Medical colleges. It is also his submission that the prospectus itself has been formulated based on the Medical Council of India Regulations. 7. The prospectus issued for admission to M.B.B.S./B.D.S. course for the year 2009-10, Clause 42(iv) deals with seats reserved for physically handicapped and the said clause is as follows: https://hcservices.ecourts.gov.in/hcservices/ "42.SPECIAL CATEGORIES: (i) to (iii) xxxxx (iv) SEATS RESERVED FOR PHYSICALLY HANDICAPPED: 3% of the total number of seats available in Government/Self Financing Medical/Dental Institutions are reserved for the Physically disabled candidates. The reservation of seats 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 candidates with disability of lower limbs between 40% to 50% will be considered. The other conditions for admission into MBBS/BDS Course will be applicable as in the case of the general category. The candidates are required to produce a certificate from the District Medical Board of the area concerned constituted for the purpose assessing the nature and the extent of disability in the format prescribed in the Annexure-III. The Medical Certificate issued by District Medical Board of the area concerned for this purpose is subject to the confirmation of the Expert Committee constituted by the Director of Medical Education at the time of counselling. The Candidate seeking admission under this category should produce the full size photograph exhibiting the deformity. Note: 1. The selected candidates for MBBS/BDS course will be required to undergo second Medical examination by a Medical Board constituted for the purpose by Director of Medical Education to ascertain and confirm the nature and extent of physical disability. 2. Candidates with any other disability other than the locomotor disability of the lower limb will not be considered for admission into MBBS/BDS Course under this Special Category. 3. The decision of the Director of Medical Education in this regard will be final". 8. The disability certificate is stated to be given in the format prescribed in Annexure-III to the prospectus which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "MEDICAL CERTIFICATE FOR PHYSICALLY DISABLED (Locomotor disability of the lower limbs should be between 40% and 70%) The District Medical Board ...District....certify that we have this .....of .....2009 examined the candidate whose particulars are given below: 1. Name of the Candidate : 2. Father's Name : 3. Sex : 4. Approximate age : 5. Identification marks : 6. Orthopaedically handicapped 7. Extent of disability (mention the % disability (Upper limit function must be normal) a) 50% to 70% b) 40% to 50% 8. Whether the candidate fulfills the followings standard and may be considered for admission to undergo studies in Medical/Dental institutions : (a) Normal Blood Pressure : (b) Mentally normal : (c) No visual and auditory handicaps : (d) No gross speech disorders : (e) Independent in ambulation with or without calipers but without walking aids : (f) Good standing balance with or without calipers but without any support : (g) Hand function within normal limits without any aid : (h) Good control over bowel and bladder : (i) Disease must be non- progressive : (The Medical Board should satisfy for all the criteria mentioned in the foot note are met with before giving the fitness) https://hcservices.ecourts.gov.in/hcservices/ Signature of the Members Signature of Chairman of the Applicant 1. Medical Board 2. PLACE : Designation : DATE : Office Stamp : FOOT NOTE: 1. Upper limbs should be normal; 2. The above certificate should be issued only by the District Medical Board of the area concerned for the purpose after due physical examination by board. Note: 1) The selected candidates have to undergo second Medical Examination by a Medical Board constituted for the purpose by the Director of Medical Examination to ascertain and confirm the nature and extent of physical disability. 2) Candidates with any other disability other than the locomotor disability of the lower limb will not be considered for admission under this category. 3) The decision of the Director of Medical Education in this regard will be final." 9. According to the petitioner, under Clause 42(iv) of the prospectus, the disability certificate issued by the District Medical Board is subject to confirmation by the Expert Committee constituted by the Director of Medical Education at the time of counselling and the certificate produced by the petitioner shows that he is physically disabled and the said certificate reads as follows:- "CERTIFICATE NO.IV Name:K.KURALARASAN Application No.155950 Medical Certificate for Orthopaedically Physically Challenged (TO BE ISSUED BY DISTRICT MEDICAL BOARD) Certified, that the District Medical Board of Cuddalore (City) have this 28th day of May 2009 examined the candidate whose particulars are given below: https://hcservices.ecourts.gov.in/hcservices/ 1.Name of the Candidate : Mr.K.Kuralarasan 2.Father's Name : Mr.P.Kodilingam 3.Sex : Male 4.Approximate Age : 18 5.Identification Marks : 1. Scar @ ..... 2. Scar @ leg (L) 6.Whether audiologically/ visually handicapped (if yes for either one or both medical certificate/s for fitness from the respective specialist/s to be produced) : 7.Nature of Orthopaedic Handicap :PostTraumaticFootdrop(L) 8.Extent of Permanent disability in percentage :60% 9.Whether the candidate fulfils the following standards and may be considered for admission to undergo studies in Engineering College/Technical Institution : Yes (a) Normal Blood Pressure : Yes (b) Mentally Normal : Yes (c) Independent in ambulation with or without calipers but without any support : Yes (d) Good standing balance with or without calipers but without any support : Yes (e) Hand function within normal limits without any aid : Yes (f) Good control over bowel and bladder : Good (g) Is the disability non- progressive : Yes 10.Whether eligible for consideration under physically challenged quota : Yes 11.Whether the candidate is physically and mentally fit to be considered for admission in Engineering College/ Technical Institution. : Yes https://hcservices.ecourts.gov.in/hcservices/ xxx xxxxx Signature of the Applicant. Chairman,District Medical Board, G.H.O.H.Cuddalore. Members: 1.xxxx 2.xxxx Date with seal of 28.05.2009 Medical Board. Note: Candidates with permanent physical impairment and above are eligible for consideration under reserved quota." 10. The said certificate has been issued by the Chairman, Medical Board, Government Headquarters Hospital, Cuddalore and signed by two other members on 28.5.2009 and the certificate is captioned as 'Certificate No.IV'. In the column relating to 'extent of permanent disability in percentage' it is stated as 60%, while the 'nature of orthopaedic handicap' is stated as post traumatic foot drop (L). Actually, the nature of orthopaedic handicap has not been understandably explained, even though the percentage is stated as 60% and the reading of the certificate shows that the petitioner suffers disability on his left leg due to accident, as stated by him in the affidavit filed. The said certificate produced by the petitioner also states at the footnote that the said permanent physical impediment enables the candidate to be considered under the reserved quota. The said certificate produced by the petitioner even though contains almost all clauses that are found in the format prescribed in the Annexure-III to the prospectus issued by the respondents, column 7 of the format in the Annexure-III speaks about the extent of disability categorising 50% to 70% as 'A' and 40% to 50% as 'B'. The format in Annexure-III also contemplates a certificate issued by the District Medical Board. The certificate produced by the petitioner is also a certificate issued by the District Medical Board. But, in the format in Annexure-III, there is a footnote saying that the upper limb should be normal. The footnote requires the authorities to conduct the second medical examination by the Board to ascertain and confirm the nature and extent of physical disability. In the format in Annexure-III it is also stated that the candidates with any other disability other than the locomotor disability of the lower limb will not be considered for admission under this category. Of course, on the facts of the presence case, the question of application of second footnote does not arise for consideration. 11. In the circumstance that major portions of the contents of format prescribed in Annexure-III and the certificate produced by the petitioner before the respondents are similar, the question to be considered is, whether the Director of Medical Education can https://hcservices.ecourts.gov.in/hcservices/ constitute another Board for the purpose of rechecking and in order to verify the certificate produced. 12. The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, in section 33 under Chapter VI relating to Employment, provides for reservation of posts and the same is as follows: " 33. Reservation of posts:- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii)hearing impairment; (iii)locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 13. Section 39 of the said Act compels educational institutions receiving aid from the Government to reserve seats not less than 3% for persons with disabilities. Section 39 is as follows: " 39. All educational institutions to reserve seats for persons with disabilities:- All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities." 14. Section 73 of the Act enables the appropriate Government to make Rules. Pursuant to the said powers the Government of Tamil Nadu framed Rules called, Tamil Nadu Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Rules, 2002 notified on 9th August, 2002 in G.O.Ms.No.120, Social Welfare and Nutritious Meal Programme. Similarly, the Government of India also notified the Central Rules called, Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Rules, 1996 which came into effect on 31.12.1996. https://hcservices.ecourts.gov.in/hcservices/ 15. Under the Act, in Section 59, the Chief Commissioner for Persons with Disabilities appointed as per section 57 is entitled to look into the grievances of the persons with disabilities who are deprived of their rights under the Act and section 59 is as follows: " 59. Chief Commissioner to look into complaints with respect to deprivation of rights of persons with disabilities:- Without prejudice to the provisions of section 58 the Chief Commissioner may on his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to- (a) deprivation of right of persons with disabilities; (b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities, and take up the matter with the appropriate authorities". However, as per section 60 of the Act, the State Government by notification can appoint Commissioners for Persons with Disabilities. 16. The term, 'disability' is defined under section 2(i) of the Act which is as follows: "2 (i) "disability" means- (i) blindness; (ii) low vision; (iii) leprosy cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii)mental illness; 16(a). The term, 'locomotor disability' is defined in section 2(o) which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "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; 16(b). Likewise, the term, 'medical authority' is defined in section 2(p) which is as follows: "medical authority" means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government; 16(c). Under section 2(t) of the Act, with regard to the persons having not less than 40% disability, it is to be certified by the Medical authority and section 2(t) is as follows: " 2(t). "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority; 17. Under the Central Rules, 1996, Rule 4 contemplates that the authority to give disability certificate is the Medical Board constituted by the State or Central Government and the issuance of such certificate by the Medical Board and the validity of the certificate are dealt with in Rules 4,5 and 6 which are as follows: " 4. Authorities to give Disability Certificate:- (1) A Disability Certificate shall be issued by a Medical Board duly constituted by the Central and State Government. (2) The State Government may constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotor/visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be. 5. Reference to Medical Board:- (1) The Medical Board shall after due examination give a permanent Disability Certificate in cases of such permanent disabilities where there are no chances of variation in the degree of disability. (2) The Medical Board shall indicate the period of validity in the certificate, in cases where there is any chance of variation in the degree of disability. https://hcservices.ecourts.gov.in/hcservices/ (3) No refusal of Disability Certificate shall be made unless an opportunity is given to the applicant of being heard. (4) On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such order in the matter as it thinks fit. 6. Validity of the Certificate: The certificate issued by the Medical Board under Rule 5 shall make a person eligible to apply for facilities, concessions and benefits admissible under schemes of the Governments or Non-Governmental Organisations, subject to such conditions as