CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 1/7 S.B. CIVIL WRIT PETITION NO.4653/2006 Saurabh Sharma Vs. State of Rajasthan & Ors. Date : 25.03.2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Dr. P.S. Bhati for the petitioner. Mr. P.C. Solanki for the respondents No.2. None for the respondents No.1 & 3. --------- 1. Heard learned counsels. 2. This writ petition has been filed by the petitioner inter alia challenging the cancellation of his admission in MBBS Course in the year 2006 by S.N. Medical College, Jodhpur vide order dated 1.8.2006 (Annex.6). 3. The said order says, “The Medical Board and Speciality Board after examining Mr. Saurabh Sharma found unfit to be considered for the MBBS Course as per MCI norms, hence he has not given admission in this Institution.” 4. That another order of Convenor, Central UG Admission Board, RPMT-2006 & Principal & Controller, Dr. S.N. Medical CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 2/7 College, Jodhpur of the same date 1.8.2006 is to the effect that “he was having upper limb deformity. Hence the admission/allotment of Mr. Saurabh Sharma is cancelled.” 5. The learned counsel for the petitioner has brought to the attention of the Court the said norms contained in Annex.1 on record in which clause (g) is relevant including the exclusion category of the said Instructions are reproduced hereunder:- “(g) 3% seats out of each category of 16% (SC),12% (ST), 21% (OBC) and remaining General Category shall be further reserved on Merit-Cum-Priority in each category vertically for DISABLED candidates having permanent disability as per MCI and Govt. of Rajasthan rules. The disability shall not be of the nature which may hamper the functioning of the candidate in his /her medical profession. The certificate regarding permanent Physical Disability including the percentage, issued by a Medical Board duly constituted by the Central / State Government will only be considered. The Undergraduate Admission Board will finally confirm the % of disability by a Medical Boad at the time of interview / counselling. CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 3/7 Note : As per Medical Council of India vide No.MCI-34 (1)/2003/Med/11773 dated 14.7.2003 and endorsed by Govt. of Rajasthan vide P-5/2/ME/Gr-1/99 dated 30.7.2003 & P.6(2)ME/I/2001 dated 18-01-2005. 1. ...... The persons who are visually handicapped hearing disabled should be deleted from his category and they should not be considered for admission in MBBS Courses. 2. ...... only persons with locomotor disability of lower limbs between 50% should be allowed the benefit or reservation under the Disability Act for admission in the medicine courses. This condition shall apply to admission in all medicine courses for reserved seats. 3. .... the last valid disability certificate of the candidate from a Medical Board should not be more than three months old from the date of submitting his / her application for seeking admission in the reserved category for disabled candidates.” 6. Dr. Bhati has contended that as a matter of fact, the said petitioner was found fit in counselling after having obtained 637 marks out of 900 marks and stood in merit and he was allotted S.N. Medical College Jodhpur and sent to Jodhpur for pursuing his course after having been found fit by the Medical Board at Ajmer and in this CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 4/7 regard the categoric averments made in para 11 of the writ petition which are reproduced hereunder have not rebutted by the respondents:- “11. That the petitioner appeared for counseling as per the schedule and under went the counseling. Here the Medical Board specially constituted by the Central UG Admission Board of the respondents thoroughly examined the petitioner in accordance with the Law and verified the disabilities certificate. The Board gave its acceptance of the disability status of the petitioner and therefore after finding him fit for all accounts to be admitted the petitioner's admission was finalised and seat was allotted to him at Doctor S.N. Medical College, Jodhpur, and thereafter the petitioner was sent to the concerned college i.e. respondent No.3 for continuing his MBBS course.” 7. Both the respondents have filed reply and the relevant part of the reply of respondents No.1 and 3 to para 11 aforesaid is reproduced hereunder:- “The petitioner was called for counselling and to assess the disability of lower limb by Medical Board to see his CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 5/7 eligibility for reservation under the sub-category of physically handicapped as per guideline. After seeing his lower limb deformity only, he was taken as eligible for reservation in the sub-category of physical handicapped and was asked to report to allotted College for medical examination and deposition of fee. However, on his physical examination, he was found to have a right upper limb weakness and was referred for opinion of Neurologist, Orthopaedician and Senior Physician. On this, a Specialist Board was constituted to examine the petitioner for medical fitness as per norms fixed by Medical Council of India. On examination by 'Specialist Medical Board, the petitioner was found unfit for admission in Medical Course as he was having Spastic haemiparisis right side involving right upper limb also, hence, he was declared as unfit by Medical Board and in such circumstances, allotment was cancelled.” 8. Having heard learned counsels this Court is of the opinion that the reason for which the petitioner's admission was cancelled is not found in the norms of exclusion or disability from the instructions quoted above. The petitioner does not appear to have been put to any notice before cancelling of his admission that he is not entitled to seat in the said course on the ground he was having Spastic haemiparisis right side as stated in reply to para No.11 and 13 CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 6/7 quoted above. The disability and exclusion from the admission as contained in aforesaid instructions does not specifically exclude such person from the category of students eligible to pursue the said course against 3% reservation of the seats as stated in clause (g) above. The impugned order Annex.6 also does not specifically contain the said reason that the petitioner was Spastic haemiparisis right side but the impugned orders merely say that the Medical Board and Speciality Board after examining him found unfit to be considered for MBBS Course as per MCI norms. Which norms or which disability dis- entitled the petitioner, is not specified in the impugned order. 9. Therefore, in the opinion of this Court, the reason assigned in the impugned orders for cancellation of admission of the petitioner is not justified or germane. Accordingly, the impugned order dated 1.8.2006 deserves to be quashed. 10. Accordingly, this writ petition is allowed and the impugned order Annex.6 dated 1.8.2006 passed by the Principal and Controller is quashed and the petitioner deserves to be admitted in the said course as per the admission granted to him. Since a period of 2 years has already passed and the petitioner has been deprived of his CW-4653/2006 - Saurabh Sharma Vs. State & Ors. : Order dt.25.03.08 7/7 admission to the said course, he would be provided a seat in the course commencing now in the year 2008. 11. With these directions directions, the petition is allowed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.20 babulal/-