2. wp 6413-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6413 OF 2011 Ansari Kaihkashan Mohdshaukat .. Petitioner Vs State of Maharashtra & Anr. .. Respondents Mr. V.P. Patil for the Petitioner Mr. S.K. Shinde, "A" Panel Counsel for Respondent-State Mr. N.R. Prajapati for Respondent No. 2 - Union of India CORAM : MOHIT S. SHAH, C.J. & GIRISH GODBOLE, J. DATE : 9 AUGUST, 2011. P.C.: 1. The petitioner challenges the decision of respondent Authorities considering the petitioner as ineligible and unfit for admission to the Medical courses from the quota reserved for persons with disability i.e physically handicapped category. 2. Recent certificate dated 5 July 2011 issued by Special Medical Board for physically handicapped indicates that the petitioner is suffering from disability of upper limb to the extent of 42% and also disability 1 2. wp 6413-11.doc of lower limb to the extent of 54%. 3. Relevant portions of the Admission Rules framed by the D.M.E.R., read as follows:- 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 Category. "3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotor 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 locomotor disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotor disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seat for State Quota candidates. 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 Special Medical Board will ascertain and certify the disability and will also 2 2. wp 6413-11.doc ascertain and certify that he/she is physically fit to undergo the course despite the disability. 3. Verification of the disability will be carried out by Special Medical Board constituted for this purpose by Competent Authority and decision of the Special Medical Board will be final. The date and place of Special Medical Board shall be communicated by the way of notification.” 4. Mr. S.K. Shinde, learned counsel for the respondent Authorities has invited our attention to the guidelines dated 14/7/2003 of Medical Council of India and particularly the following portion of the guidelines:- “The Executive Committee also considered the following relevant portion of the guidelines dated 5th 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 M.B.B.S. Among the locomotory disabled the upper limb should be functional and 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 and 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 authorized Medical Board. 3 2. wp 6413-11.doc 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...” With reference to the second question mentioned above, the Committee decided that the stipulation of locomotory disability of lower limbs between 40% to 60% be amended/modified to 50% to 70% in place of 40% to 60%...... The Committee reiterated that it is only persons with locomotory disability of lower limbs between 50% to 70% should be allowed the benefit of reservation under the Disability Act for admission in the medicine courses. This condition shall apply to admission in all medicine courses for reserved seats.” 5. In view of the above, it is clear that since the petitioner has permanent disability of the upper limbs, the petitioner has not even been considered to be fit for admission to the Medical courses. In this view of the matters, no interference can be warranted in exercise of extra ordinary jurisdiction under Article 226 of Constitution of India. Writ Petition is therefore, summarily rejected. [ CHIEF JUSTICE ] [ GIRISH GODBOLE, J ] 4