IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.4.2011 C O R A M : THE HONOURABLE MR.M.Y.EQBAL, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.A.No.309 of 2011 Dr.Revathi ... Appellant/ Petitioner -vs- 1.The State of Tamil Nadu, rep. By Secretary to Government, Health Department, Secretariat, Chennai-600 009. 2.The Selection Committee for Medical Admission, rep.by its Secretary/Addl.Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3.The Medical Council of India, rep.by its Secretary, Alwan-e-Galib Marg, Kotla Road, Opp.Mata Sundari College (for Women), New Delhi-110 002. 4.The Government of India, rep.by its Secretary, Health and Family Welfare Department, Nirman Bhavan, New Delhi. .. Respondents/ Respondents PRAYER : Appeal filed under Clause 15 of the Letters Patent against the order dated 10.11.2010 made in W.P.No.22999 of 2010 on the file of this Court. For appellant : Mr.K.Doraisamy, SC for M/s.Muthumani Doraisamy https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.G.Sankaran, Spl.G.P. For R1 & R2 Mr.V.P.Raman for R3 Mr.P.Mahadevan, SCCG for R4 J U D G M E N T THE HON'BLE THE CHIEF JUSTICE AND T.S. SIVAGNANAM, J. This writ appeal is directed against the judgment and order, dated 10.11.2010 passed in W.P.No.22999 of 2010 whereby the learned Single Judge dismissed the writ petition filed by the appellant / writ petitioner. 2. The appellant/writ petitioner filed the aforesaid writ petition for issuance of a writ of certiorarified mandamus to quash the proceedings of the second respondent, dated 14.9.2010 and to issue a direction upon the respondents to consider the petitioner for admission to any Post Graduate Course in Medicine in any of the Medical Colleges under the control of the respondents. 3. The case of the petitioner is that she is a physically disabled person with congenital deformity of both her hands and legs and that she secured 1120 marks out of 1200 marks in her Plus Two examination and was selected for the MBBS Course during 2004 under the 3% quota reserved for handicapped persons. It appears that she has successfully completed the course and has also been offered employment by the Government. The appellant applied for admission to the Post Graduate Course for the session 2010-2011. The appellant is stated to have produced the Medical Certificate, which was issued to her earlier. But yet the first respondent did not consider her fit for admission to the Post Graduate Medical Degree Course. 4. Therefore, the petitioner filed a writ petition being W.P.No.12501 of 2010. In the said writ petition, the appellant sought for a direction upon the respondents to allot one seat for her in the Post Graduate Medical Degree Course during the session 2010-2011 in any one of the Medical Colleges by implementing the Circular issued by the Government of India, Ministry of Health and Family Welfare, dated 16.5.2008. During the course of hearing of the said writ petition, the petitioner as well as the official respondents agreed that the petitioner shall be sent to the Medical Board for assessment of her disability. Accordingly, as agreed to by the parties, the Medical Board consisting of Dr.Chinnadurai, https://hcservices.ecourts.gov.in/hcservices/ Professor - Physical Medicine Institute, K.K.Nagar, M.M.C.; Dr.Boopathy, Professor - Neurology, M.M.C., and Dr.Govardhan, Professor – Ortho, M.M.C. was constituted. Based on such consent order, the petitioner subjected herself to the assessment by the said Medical Board. The Medical Board in its Report, dated 07.9.2010, stated as under:- ''A case of Bilateral absence of fibula (fibular hemimelia) with short Tibiae and valgus foot. Her both hands were deformed shortened and had disproportionate length of phalanges. Her deformities were analysed with X-Rays. 1)The percentage of the disability of lower limbs assessment is 51% 2)The percentage of disability of upper limbs assessment is 55% The total percentage of disability is 75% With the above said deformities and problems, the hands are not functionally normal". 5. From a perusal of the above report, it is seen that the Medical Board assessed the total percentage of disability at 75%. Based on the findings of the Medical Board, the Selection Committee informed the petitioner by a communication dated 14.9.2010, stating that the appellant is ineligible for the Post-Graduate Course under special category. Challenging the said proceedings dated 14.9.2010, the petitioner filed the present writ petition being W.P.No.22999 of 2010. The official respondents resisted the claim made by the petitioner by filing a counter affidavit. 6. The learned Single Judge, who heard the writ petition, after considering the entire matter at great length, by an order dated 10.11.2010, dismissed the writ petition. Aggrieved by the said order, the appellant/writ petitioner is before this Court by way of this writ appeal. 7. The learned Senior Counsel appearing for the appellant would submit that the assessment of the Medical Board in its Report, dated 07.9.2010 is erroneous. In this regard, the learned Senior Counsel placed reliance on the Certificate of Disability issued during 2004, in which the petitioner's permanent disability was assessed at 70% and the subsequent Certificate of Disability issued during 2010, wherein the disability was assessed at 60% and, therefore, the finding of the latest Medical Board is erroneous. The learned Senior Counsel would further submit that there are several Post Graduate Courses in Medicine, such as, Dermatology, https://hcservices.ecourts.gov.in/hcservices/ Psychiatry, Community Health Administration, Radio Diagnosis etc. in which the petitioner could be admitted, and that the finding of the Medical Board is incorrect. 8. Per contra, the learned Special Government Pleader appearing for the Selection Committee would submit that on and after the order passed in the earlier writ petition, viz., W.P.No.12501 of 2010, dated 03.8.2010, the appellant is estopped from now questioning the decision of the Medical Board, more particularly, when the order in the earlier writ petition was a consent order and the members, who constituted the Medical Board were also named in the said order and the appellant having agreed to subject herself to assessment by the said Medical Board, cannot now call upon this Court to examine the correctness of such expert opinion. Further, the learned Special Government Pleader would submit that the Selection Committee is bound by the directions issued by the Medical Council of India, which have been clearly stated in Clause 57 of the Prospectus and a person, like the appellant, who is suffering from 75% disability, is not eligible for consideration. A copy of the notification issued by the Medical Council of India was also placed for our consideration. 9. We have given our anxious and sympathetic consideration to the present case. It is not in dispute that the appellant is suffering from a congenital deformity of both her hands as well as her legs. It is true that the first Medical Board, which assessed her disability, certified that she is physically disabled to the extent of 70%. Prior to her selection to the M.B.B.S Course, she had produced a Certificate, wherein the disability was certified at 60%. Be that as it may, the petitioner in an earlier writ petition questioned her non-selection on the same lines as in the present appeal. The learned Single Judge, who heard the said writ petition, after hearing all the parties, passed an order, which is a consent order. For better appreciation, the relevant portion of the order is quoted hereinbelow:- ''11. As both parties agreed for taking opinion by a Medical Board as to the eligibility of the petitioner for Post Graduate Medical Course, a direction is issued to the petitioner to appear before the Medical Board consisting of Dr.Chinnadurai, Professor Physical Medicine Institute, K.K.Nagar, M.M.C., 2. Dr.Boopathy, Professor Neurology, M.M.C. and Dr.Govardhan, Professor-Ortho, M.M.C. as and when she is required to appear and the Medical Board is also directed to furnish its opinion within a period of ten days. 12. If the petitioner is found eligible, the respondents 1 and 2 are directed to consider her case https://hcservices.ecourts.gov.in/hcservices/ for the Post Graduate Medical Course, if she is otherwise eligible for selection. However, the admission of the petitioner to Post Graduate Course is subject to the clearance by Medical Council of India. The Medical Council of India may take into account the ordeal undergone by this Physically Challenged person, as she was repeatedly asked to appear before the Medical Boards, while considering approval of her admission into Medical Course, in the event the Medical Board finds her fit." 10. Thus, in view of the consensus arrived at between the parties, the above referred order is binding not only upon the official respondents, but the appellant as well. Thus, by agreeing to get herself subjected to assessment by a fresh Medical Board, the appellant is precluded from relying upon any earlier assessment. Admittedly, the Medical Board consists of experts in the field and this Court cannot substitute its opinion in the place of the opinion rendered by the experts. 11. As noticed above, the Medical Board in its report dated 07.9.2010, has certified that the percentage of disability is 75%. In terms of Clause 57 of the Prospectus, which has been noticed by the learned Single Judge, 3% of the total number of seats available for Government Medical/Dental Institutions are reserved for physically disabled candidates (only for locomotory disabilities of lower limbs). The condition further stipulates that the reservation of seats in the first instance is to the candidates with disability of lower limbs between 50% and 70% and in case candidates are not available in that category, then candidates with 40% to 70% locomotory disabilities of the lower limbs will be considered. Unfortunately, the appellant suffers disability in both her upper limbs as well as lower limbs and the Medical Board has assessed her disability of lower limbs at 51% and disability of the upper limbs at 55% and the total percentage of disability being 75%. 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 14.7.2003. 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. https://hcservices.ecourts.gov.in/hcservices/ 12. Though the learned Special Government Pleader appearing for the respondents submitted that the appellant is suffering from a peculiar situation, where there is degeneration in her disability, the learned Senior Counsel for the appellant would submit that there is no material on record to substantiate such contention. However, we do not propose to go into the controversy at this stage of the matter, as we are fully satisfied that in terms of Clause 57 of the Prospectus, the appellant cannot stake a claim for being admitted to the Post Graduate course. Therefore, we do not find any reason to interfere with the order passed by the learned Single Judge in dismissing the writ petition. 13. As noticed above, after the completion of her M.B.B.S. Course, the appellant has been offered a job by the Government of Tamil Nadu, which we appreciate. 14. In the result, the writ appeal is dismissed. However, there will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. js To 1.The Secretary to Government, Health Department, Secretariat, Chennai-600 009. 2. The Secretary/Addl.Director of Medical Education, The Selection Committee for Medical Admission, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3.The Secretary, The Medical Council of India, Alwan-e-Galib Marg, Kotla Road, Opp.Mata Sundari College (for Women), New Delhi-110 002. https://hcservices.ecourts.gov.in/hcservices/ 4.The Secretary to the Government of India, Health and Family Welfare Department, Nirman Bhavan, New Delhi. 1 cc to M/s. Muthumani Doraisami, Advocate, Sr. 29128 1 cc to M/s.P. Mahadevan, Advocate, Sr. 28919 W.A.No.309 of 2011 UG (CO) kk 4/5 https://hcservices.ecourts.gov.in/hcservices/