IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WA.No. 1900 of 2008() --------------------- (AGAINST THE JUDGMENT IN WPC NO.24194/08 DT 2.9.2008) APPELLANT: PETITIONER: --------------------------------------- MUHAMMED SUBAIR.T, S/O.KUNHIMOHAMMED, THOTTATHIL HOUSE, CHERUKARA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN 695 001. 2. THE SUPERINTENDENT, DISTRICT HOSPITAL, MANJERI, MALAPPURAM DISTRICT. SR.GOVT.PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03//06/2011, THE COURT ON 22/06/2011 DELIVERED THEFOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1900 OF 2008 =================== Dated this the 22nd day of June, 2011 J U D G M E N T Antony Dominic, J. The unsuccessful petitioner in WP(C) No.24194/2008 is the appellant in this writ appeal. 2. Ext.P1 is a certificate issued by the District Medical Board, District Hospital, Manjeri, Malappuram certifying that the appellant suffers 50% permanent disability of “residual speech defect after cliff palate repair”. 3. In 2008, the respondents published prospectus for admission to Engineering/Medical Entrance Examination. Clause 5.3 of the prospectus provided that 3% 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/Aided Colleges as stipulated in Section 39 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'Act' for short). 4. On the strength of Ext.P1 certificate, appellant submitted his application for admission to MBBS course. He WA No.1900/2008 : 2 : appeared for the test and according to the respondents, he was provisionally included under the “PD Category”. In terms of the provisions contained in Clause 5.3 of the prospectus, he was called upon to appear before an Expert Committee which assessed his disability to be less than 40% and accordingly, Ext.P5 was issued rejecting the claim of the appellant for admission to MBBS, giving the benefit of reservation under the physically handicapped category. 5. Thereupon he approached this Court by filing WP(C) No.20239/08, which was disposed of by Ext.P6 judgment quashing Ext.P5 and directing reconsideration of his claim. Thereupon Ext.P7 memo was issued requiring the appellant to appear before the Expert Committee for assessing his disability and suitability. The appellant appeared before the Committee and on the basis of the assessment made, the 1st respondent issued Ext.P8, which reads as under:- As per the decision of the State Level Committee for Assessing the Disability and Suitability of candidates held on 23.7.2008, you will be considered for allotment under 'Physically Disabled' (PD) quota for B.Pharm Course only. WA No.1900/2008 : 3 : You will be given separate facility for registering options during the second phase of allotment for which individual intimation will be sent to you. 6. It was challenging Ext.P8 and to direct the respondents to give admission to the appellant under the quota for persons with disabilities, the writ petition was filed. 7. When the writ petition came up for hearing, this Court called for the report of the Medical Board and the learned Judge held as follows:- 4. A copy of the medical inspection report by the expert doctors has been made available to me by the learned Government Pleader for perusal. The same reads thus: “Suitable only for B.Pharm. Since he has got severe communicative disability, he is not suitable for all medical courses (MBBS, BDS). Doctor- patient communication is must. So he won't be able to attend the clinical postings. Hence he is not suitable for medical courses. 5. I am not an expert on the subject. Experts in the field have certified as above. I cannot come to a different conclusion on the basis of the averments in the writ WA No.1900/2008 : 4 : petition. It is general knowledge that MBBS consists of examinations wherein the student is expected to communicate with the patient, obtain information regarding the disease of the patient and communicate the same to the examiner as a test of proficiency in diagnosis. The student is also expected to prepare the case history of the patient. All these would be possible only if the petitioner is able to communicate effectively with the patient as well as the examiner. When the expert team of doctors certify that the petitioner would not be able to communicate with the patient appropriately, I cannot hold otherwise. That being so, I do not find any merit in the writ petition and accordingly the same is dismissed. It is aggrieved by this judgment, the writ appeal was filed. 8. When the writ appeal was considered, the appellant appeared before this Court and after speaking to him, this Court passed order dated 26th of September, 2008 directing the 1st respondent to allot one seat for MBBS Course to the appellant provisionally subject to the result of the writ appeal and the admission was ordered to be made before 27/9/2008. The order dated 26th September, 2008 reads as follows:- WA No.1900/2008 : 5 : Appellant who is a physically disabled person, had filed the writ petition seeking for issue of a writ of mandamus or such other appropriate writ or direction to respondent No.1, to give him admission to the M.B.B.S course for the year 2008 under the quota ear-marked for persons with disabilities. He had further sought for issuance of a writ of certiorari to quash Ext.P8 letter issued by respondent No.1, in which the appellant was informed that he could be considered for allotment of a seat under the physically disabled (PD) quota for B.Pharm course only. In other words, the claim for admission to the M.B.B.S course made by the appellant was turned down . 2. The learned single Judge before whom the writ petition came up for consideration dismissed the same solely relying on the opinion given by the Medical Expert Committee, which took the view that appellant was not suitable for admission to medical courses (MBBS, BDS), since he has got communicative disability. The above judgment is under challenge in this writ appeal. 3. The writ appeal came up for admission before this Court on September 24, 2008. In the course of hearing of the appeal, learned counsel for the appellant strenuously contended before us that the WA No.1900/2008 : 6 : opinion of the Medical Board is not correct at all. Learned counsel informed us that the appellant was present in court. 4. We had talked to the appellant. Several questions were put to him. To all queries the appellant had answered us. Even from a distance of 15 to 20 feet, we could clearly understand whatever he spoke. We were informed that the appellant has a congenital cleft lip and had undergone some treatment initially. His father is a Coolie and obviously he hails from a poor family. Ext.P1 certificate issued by the District Medical Board , District Hospital, Manjeri reveals that his physical handicap relates to “residual speech defect after cliff palate repair”. The District Medical Board in Ext.P1 certificate dated March 26, 2008 had fixed his disability at 50%. Having talked to the appellant we thought that it would be appropriate to direct the learned Government Pleader to inform us about the quota position and the stage of allotment of seats for the MBBS course. 5. Today, Ms.Meera, learned Government Pleader has made available before us the relevant materials. A counter affidavit of respondent No.1 has also been filed. It is admitted in the counter affidavit that the appellant was provisionally included in the PD category as per clause 5(3) of the WA No.1900/2008 : 7 : prospectus. It is also admitted by respondent No.1 that clause 5(3) explicitly stipulates that selection of candidates under PD category will be based on the merit in the Entrance Examination and physical suitability, and not on the basis of degree of disability. It is not disputed before us that appellant was in fact included under the PD category even during the last year. The case of respondent No.1 in the counter affidavit is that appellant was not given admission to MBBS Course since the Expert Committee who examined the appellant had opined that he had got communication disability and therefore is not suitable for medical courses. According to the Committee, for all Medical Courses (MBBS, BDS), doctor- patient communication is a must and the appellant won't be able to attend the clinical postings. 6. It is submitted by the learned Government Pleader that 24 seats for the MBBS course have in fact been set apart towards the 3% quota available to physically disabled candidates under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. She further submits that only two candidates were available under the said quota this year and those two seats have already been allotted to the said WA No.1900/2008 : 8 : two candidates. She further submits that 22 seats earmarked for the physically handicapped candidates have been “merged” with the general merit quota and allotted to some other candidates. That was done on September 21, 2008. It is also brought to our notice that final allotment of seats after reckoning the All India seats available, if any, is to be completed on September 27, 2008. 7. Keeping in view the urgency of the matter, we are satisfied that appropriate directions have to be issued in this case today itself. 8. Having regard to the peculiar facts and circumstances of the case and keeping in view the fact that we did not find any kind of “communicative deficiency” in the appellant, we are satisfied that the stand taken by respondent No.1 cannot be prima facie justified. Therefore, in our view, this is a fit case where an interim direction requires to be issued. 9. Therefore respondent No.1 is directed to allot one seat for MBBS Course to the appellant provisionally during the current academic year, subject to the final result of the writ appeal. This shall be done on or before 27/09/2008. 9. Accordingly, the appellant was granted admission and WA No.1900/2008 : 9 : he is now pursuing his studies. It is while so that this writ appeal came up for final hearing. 10. We heard the counsel for the appellant and the learned Government Pleader and considered the submissions made. 11. It is not in dispute that the prospectus provided for reservation of 3% of the seats in terms of the provisions contained in Section 39 of the Act. It was the benefit of the said reservation that the appellant claimed. Clause 5.3 of the prospectus provided for production of disability certificate, and that the candidates should appear before the State Level Committee to be constituted by the Government, which has been conferred the power to review the certificates issued by the District Medical Boards. It was such a Committee which examined the disability of the appellant and issued the certificate, which is extracted in the judgment under appeal. Nothing has been placed before us to take the view that the experts have committed any illegality in assessing the disability of the appellant. If that be so, this Court which lacks any expertise in the medical field, should accept the expert opinion WA No.1900/2008 : 10 : of the Board. Therefore, there is no reason for us to disagree with the view taken by the learned Single Judge. 12. Even apart from this, on merits also, the appellant is not entitled to admission in the quota reserved for physically handicapped persons. Section 39 of the Act provides that all Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than 3% seats for persons with disabilities. The expression 'person with disability' has been defined in Section 2(t) as a person suffering from not less than 40% of any disability as certified by a medical authority. The expression disability has been defined in Section 2(i) as follows:- (i) “disability” means:- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 13. The expressions blindness, leprosy cured person, hearing impairment, locomotor disability, mental retardation and mental illness have also been defined in Sections 2(b), (n), (l), WA No.1900/2008 : 11 : (o), (r) and (q) of the Act respectively. For the purpose of this judgment, it may not be necessary to go into those details. Suffice it to say that the disability suffered by the appellant viz., “residual speech defect after cliff palate repair” is not one which is included among the seven items of disabilities enumerated in Section 2(i) of the Act. Therefore, the disability of the appellant is not a disability for the purpose of the Act. If that be so, the appellant is not entitled to reservation in terms of the provisions of the Act. 14. Be that as it may, fact remains that this Court passed order dated 26th of September, 2008, which has been extracted above. In pursuance to the said order, the appellant has been admitted to the course and is pursuing his studies since then. Even if the admission of the appellant is disturbed at this point of time, the seat to be vacated by him cannot be filled up by another person and will go unutilised, a national waste. That apart, the appellant is a person who is qualified and is eligible for admission. In such circumstances, nobody will be prejudiced if the appellant is permitted to complete the course and none will be benefitted if the appellant is made to discontinue the course. WA No.1900/2008 : 12 : 15. Therefore, though we uphold the judgment of the learned Single Judge, it is directed that the appellant shall be permitted to continue his studies in the MBBS Course, based on the admission granted pursuant to the order dated 26th of September, 2008. Writ appeal is disposed of as above. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp