IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.09.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.16144 OF 2011 AND M.P.NO.1 OF 2011 P.Divya ... Petitioner rep by her mother P. Lakshmi, Old No.151, New No.198, Ammani Ammal Thottam, Royapuram, Chennai 13. Vs. 1.The Secretary to Government Department of Health Fort St.George, Secretariat, Chennai – 600 009. 2.The Secretary Selection Committee Directorate of Medical Education Kilpauk, Chennai – 600 010. 3.Medical Council of India Rep. by its Secretary Dwarker Phase – I, 8, New Delhi. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for entire records, quash the Medical Council notification dated 25.03.2009 made in No.MCI-34(41)/2008-Med-54469 and the prescribed rule in prospectus for M.B.B.S / B.D.S, 2011-2012 permitting only the orthopaedically physically disabled candidates of four limbs which is mentioned in the Sl.No.42 in Cl.No.4 in page No.16 of the prospectus as unconstitution and consequentially amend the eligibility criteria for the admission of Medical Course including the other Locomotor Disabilities as contemplated under Section 2(o) and 2(i) of the Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation Act, 1995 and to direct the 2nd respondent to allot one M.B.B.S. Seat to the petitioner based on the marks obtained / rank list under the Special category (Orthopaedically Physically Disabled). https://hcservices.ecourts.gov.in/hcservices/ (Prayer amended as per order dated 10.08.2011 in M.P.No.2 / 2011 in W.P.No.16144 of 2011) For Petitioner : Mr.R.Prabhakaran For Respondents 1&2 : Mr.P.Sanjay Gandhi Additional Govt. Pleader For Respondent 3 : Mr.V.P.Raman O R D E R An interesting question arises for consideration is as to whether the Regulations framed by the Medical Council of India, the third respondent herein, under Section 33 of the Indian Medical Council Act, 1956 (Shortly "the MCI Act") prescribing that the persons suffering locomotor disability in lower limbs with 40 - 70% alone are entitled to reservation for admission in M.B.B.S. Course, under 3% reservation provided under Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Shortly "the Disabilities Act"). 2.The petitioner passed +2 examinations during the academic year 2010-2011. She made an application to the second respondent for admission in M.B.B.S. Course. She is a physically challenged person. She applied under Special Category (Orthopaedically Physically Disabled). She was called for counselling on 30.06.2011. She did not get a seat under the Special Category (Orthopaedically Physically Disabled) on the ground that she does not suffer locomotor disability with lower limbs, according to the Selection Committee. The petitioner produced a disability certificate issued by the Regional Medical Board, Government General Hospital, Chennai. As per the disability certificate, she suffers locomotory lower limbs disability between 40-50%, while upper limbs are normal. The Medical Board opined that the petitioner fulfills the medical standards to undergo studies in Medical institutions. But the said medical certificate was not acceptable to the second respondent. 3.In these circumstances, the petitioner filed the present writ petition seeking to quash the notification dated 25.03.2009 issued by the third respondent as well as Sl.No.42, Column No.4 of the prospectus issued by the first respondent, making only the Orthopaedically Physically Disabled candidates with lower limbs disability alone as eligible for admission to M.B.B.S. Course and also for a consequential direction to amend the eligibility criteria for admission to M.B.B.S. Course by including other locomotor disabilities as contemplated under Section 2(o) https://hcservices.ecourts.gov.in/hcservices/ read with 2(i) of the Disabilities Act. 4.In the writ petition, this Court passed an order on 15.07.2011 directing the second respondent to ascertain the petitioner's disability taking into account the disability certificate produced by the petitioner referred to above. Subsequently, an interim order was passed in M.P.No.1 of 2011 in W.P.No.16144 of 2011 directing the second respondent to keep one M.B.B.S. Seat vacant. 5.Pursuant to the direction issued by this Court on 15.07.2011, the second respondent referred the petitioner to another Regional Medical Board, Government General Hospital, Chennai. The said Medical Board gave a certificate dated 19.07.2011 stating that petitioner's upper and lower limbs are normal. The Medical Board opined that the petitioner is not eligible for admission to M.B.B.S. Course, as per the guidelines issued by the Medical Council of India. 6.The respondents 1 and 2 have filed a common counter affidavit and the third respondent has filed a counter affidavit refuting the allegations. 7.The respondents 1 and 2 have stated in their counter affidavit that based on the guidelines issued by the third respondent, the prospectus was issued providing reservation to Orthopaedically Physically Disabled candidates with disability of lower limbs between 50 -70% and in case, candidates are not available in that category, then candidates with lower limbs of 40– 50% may be considered. The crux of the counter affidavit is that they simply followed the decision of the third respondent. 8.The third respondent has filed a detailed counter affidavit stating that the Medical Council of India is a statutory authority created and constituted by the Central Government under the MCI Act and the third respondent has been vested with the responsibility of discharging the duties of maintenance of minimum standards of Medical Education throughout the country. The Regulations framed by the third respondent under Section 33 of the MCI Act to maintain the standards of medical education are statutory in character. It is stated that the Honourable Apex Court has held that the Regulations of the third respondent are statutory and those Regulations are mandatory and binding on all Universities and Colleges which conduct medical courses. In this regard, the third respondent has referred to some of the judgments of the Honourable Apex Court. It is further averred that a Resolution was passed by the Executive Committee on 05.07.2001 to provide 3% reservation for the disabled persons in the medical courses under Section 39 of the Disabilities Act. In the said Resolution, it was https://hcservices.ecourts.gov.in/hcservices/ decided to exclude the visually handicapped persons and persons having hearing impairment, from the 3% reservation provided under Section 39 of the Disabilities Act, while providing the benefit of 3% reservation to persons with locomotor disability in lower limbs between 40-60%. Later, the same was modified and the eligibility condition was locomotor disability of lower limbs between 50-70%, by way of the Resolution dated 30.06.2003 of the Executive Committee and the same was communicated to the Government of India vide their letter dated 14.07.2003. The said decision of the Committee was also approved by the General Body of the third respondent on 20.10.2003. 9.The third respondent has stated that a Division Bench of the Orissa High Court passed a judgment dated 02.02.2005 in W.P.Nos.7877 and 7878 of 2004 in D.S.Rashmi Ranjan's case holding that persons with 40% - 70% disabilities would be eligible for admission to Medical Courses, based on Section 2(t) of the Disabilities Act. Against the said judgment, the third respondent preferred SLP before the Honourable Apex Court. The Honourable Apex Court granted interim stay of the order of the Division Bench of the Orissa High Court. The Honourable Apex Court passed an interim order directing the third respondent as to why candidates suffering from locomotor disability of lower limbs between 40 – 50% should not get admission in Medical Courses, in case sufficient number of candidates for 3% reservation seat are not available. 10.In these circumstances, the matter was placed before the Executive Committee, by the third respondent, on 07.09.2006 and the criteria for admission to Medical courses was modified to the effect that in case, candidates with 50 - 70% locomotor disability in lower limbs are not available, the seats could be allotted to the candidates with 40 - 50% locomotor disability in lower limbs. The said decision was approved by the General Body of the third respondent by circulation. Thereafter, the Graduate Medical Education Regulations, 1997 was amended suitably, in terms of the decision taken in the General Body. It is further stated that the extent of judicial review under Article 226 of the Constitution of India examining the constitutional validity and vires of the Regulations is limited and can be tested on certain restricted grounds alone. 11.It is further stated that the Honourable Apex Court vide its order dated 24.08.2011 disposed the Civil Appeal Nos.8447 and 8448 of 2010 in Medical Council of India Vs. D.S.Rashmi Ranjan in view of the amendment made to the Graduate Medical Education Regulations, 1997 and notified in the Gazette dated 25.03.2009. It is further stated that the MCI Act is a Special Act, while the Disabilities Act is a General Act dealing with physically challenged persons in all spheres. It is stated that the persons https://hcservices.ecourts.gov.in/hcservices/ having locomotor disability of lower limbs falling in the category of 40 – 70% alone would be entitled to admission in Medical courses and not others. 12.In view of the important issue that has arisen for consideration, this Court appointed Mr.V.Lakshminarayanan, learned counsel, as Amicus Curiae to assist this Court. 13.Heard the submissions made by all the parties. 14.The learned counsel for the petitioner submits that the second Medical Board gave a disability certificate dated 19.07.2011 stating that the petitioner suffers 46% disability. According to him, as per the said disability certificate, the petitioner suffers locomotor disability as contemplated under Section 2(o) of the Disabilities Act. Even if upper and lower limbs are normal, as stated in the certificate, still a person would suffer locomotor disability as contemplated under Section 2(o) of the Disabilities Act. According to him, "limbs" mentioned in Section 2(o) of the Disabilities Act could not be taken only as lower and upper limbs. The learned counsel has relied on the dictionary meaning of "limbs" in Geddes & Grosset, Compact Edition, Family Medical Companion in support of his submission. 15.It is submitted that since Section 39 of the Disabilities Act covers persons with locomotor disability, the impugned Regulation confining only to locomotor disability in lower limbs alone is illegal. That is, according to him, if the disability certificate dated 19.07.2011 of the second Medical Board is read to the effect that the petitioner suffers with locomotor disability above 40%, the petitioner is entitled to admission in M.B.B.S. Course under 3% reservation. It is also submitted that since Section 2(t) of the Disabilities Act defines a person above 40% disability as "person with disability", who is entitled to reservation under Section 39 of the Disabilities Act and classifying persons with disability in two categories in the impugned notification, one with 50-70% and the other 40-50%, is contrary to and in violation of the Disabilities Act. 16.The learned counsel has further argued that Section 39 of the Disabilities Act is wide enough in providing reservation to all persons with disabilities without restriction and since the petitioner is a person with disability as per Section 2(t) read with Section 39 of the Disabilities Act, the petitioner is entitled to 3% reservation. 17.The learned Amicus Curiae has taken me through the various provisions of the Disabilities Act and submits that the Scheme of Disabilities Act makes it clear that Section 39 of the https://hcservices.ecourts.gov.in/hcservices/ Disabilities Act is a code by itself. According to him, Chapter-V read with Section 39 in Chapter-VI of the Disabilities Act should be interpreted liberally to give the benefit of 3% reservation to persons with 40% disabilities and above, without restricting to only one category namely, locomotor disability, that too confining to lower limbs disability. He further submits that while the Disabilities Act restricts to three disabilities in the case of employment, the same provides reservation in the matter of education to all persons with all disabilities, without any restriction under Section 39 of the Disabilities Act and only restriction imposed in Section 2(t) of the Disabilities Act is that the disability should be 40% and above. He has further submitted that the Disabilities Act was made in pursuant to the proclamation made in the International Conference at Beijing in the year 1992 and the statement of objects and reasons and the long title of the Disabilities Act requires wider interpretation to Section 39 of the Disabilities Act. 18.The learned Amicus Curiae has relied on a Division Bench judgment of this Court in G.MUTHU VS. THE MANAGEMENT OF TAMIL NADU STATE TRANSPORT CORPORATION (MADURAI) LTD. [2007(I)LW146], wherein it is held that Section 47 of the Disabilities Act is a code by itself and disabilities acquired during service as per Section 47 of the Disabilities Act should be given a different meaning and Section 2(i) of the Disabilities Act could not whittle down the amplitude of Section 47 of the Disabilities Act. That is, Section 2(i) of the Disabilities Act that defines "disability" could not be read into Section 47 of the Disabilities Act to understand the word "a disability" used therein and Section 2(i) could be read into Section 47 of the Disabilities Act, then the list of disabilities mentioned in Section 2(i) of the Disabilities Act could be taken as illustration and not as exhaustive. It is further submitted that SLP preferred against the said judgment was dismissed by the Honourable Apex Court. He further submits that the same principle should be applied to Section 39 also. 18.1.The learned Amicus Curiae traced the history as to how the third respondent refused to provide 3% reservation under the Disabilities Act and thereafter, the same has been provided only to the persons with locomotor disability in lower limbs alone. According to the learned Amicus Curiae, the approach of the third respondent is totally erroneous, as it proceeds as if there are only 3 categories of disabilities. Because of this erroneous approach, the third respondent committed error. It is submitted that when the third respondent has contravened the Disabilities Act, the same could be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 18.2.The learned Amicus Curiae has relied on the following judgments in support of his submissions: 1)Division Bench judgment of the Gujarat High Court in Palak Kailashchandra Jain Minor Vs. Union of India 2)Judgment of the Honourable Apex Court in All Kerala Parents Association Vs. State of Kerala [2002 (3) KLT 423 (SC)] 3)Division Bench judgment of this Court in P.Rajaprabaharan Vs. The Secretary to Government, Higher Education Department, Chennai and others [2005 STPL (LE- CIVIL) 14883 MAD] 4)Division Bench judgment of Gauhati High Court in Smt.Anju Talukdar and another Vs. State of Assam and others [2008 STPl (LE-CIVIL) 20773 GAU] 18.3.The learned Amicus Curiae further has also relied on a Division Bench judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central decided on 10.04.2003 wherein, the High Court directed to give medical seat to students with colour blindness. 19.On the other hand, the learned Additional Government Pleader (Education) submits that the respondents 1 and 2 have followed the guidelines framed by the Medical Council of India, as the Medical Council of India is regulating the Medical Education in India. 20.The learned counsel for the third respondent submits that the third respondent has power to frame Regulations under Section 33 of the MCI Act and the Regulations framed by the third respondent, which is impugned in the present writ petition was upheld by a Division Bench of the Orissa High Court in D.S.Rashmi Ranjan's case in W.P.Nos.7877 and 7878 of 2004 dated 02.02.2005. The said Regulations have also received the implied assent of the Honourable Apex Court in Civil Appeal Nos.8447 and 8448 of 2010 dated 24.08.2011. It is further submitted that the writ petition has not met the requirements for challenging the statutory Regulations as laid down by the Honourable Apex Court in State of Tamil Nadu and Another Vs. P.Krishnamurthy and Others [2006 (4) SCC 517]. He further submits that the impugned Regulation is statutory in character and the same is mandatory and binding on all the Universities and Colleges, which conduct medical courses, as held by the Honourable Apex Court in Medical Council of India Vs. State of Karnataka [1998 (6) SCC 131]. https://hcservices.ecourts.gov.in/hcservices/ 20.1.According to the learned counsel for the third respondent, Section 2(i) of the Disabilities Act is exhaustive and not illustrative in so far as Section 39 of the Disabilities Act is concerned, while it is illustrative in so far as Section 47 of the Disabilities Act is concerned, as per the decision of the Division Bench of this Court in G.Muthu's case (cited supra). The learned counsel further submits that the Medical Council of India, being an expert body, the decision of the expert body could not be interfered with. The learned counsel has relied on a First Bench judgment of this Court in Dr.Revathi Vs. The State of Tamil Nadu in W.A.No.309 of 2011 (decided on 27.04.2011) and submits that the Regulations is binding on the respondents 1 and 2 as well as the candidates, who applied for medical courses. He has sought for dismissal of the writ petition. 21.I have considered the submissions made by all the parties and perused the materials available on record. 22.The Disabilities Act was enacted by the Parliament, in view of its obligation under Article 253 of the Constitution of India, to give effect to the Proclamation made in the International Convention held at Beijing in the year 1992. In the said Convention, the Proclamation on Full Participation and Equality of People with Disabilities in the Asian and Pacific regions was adopted. India, being a signatory to the above said proclamation, Disabilities Act was enacted. The statement of objects and reasons states that the said Act provides for the following: "(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation or persons with disabilities: (ii)to create barrier free environment for persons with disabilities; (iii)to remove any discrimination against persons, with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons: (ii)to counteract any situation of the abuse and the exploitation of persons with disabilities; (iii)to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (iv)to make special provision of the integration of persons with disabilities into the social mainstream" https://hcservices.ecourts.gov.in/hcservices/ 23.The Scheme of the Disabilities Act places responsibility on both the State and Central Governments to carry out the objects of the same. Chapter – I deals with various definitions. Chapter–II is on the Central Coordination Committee. Section 8 in Chapter-II deals with the functions of the Central Coordination Committee. Likewise, Chapter-III deals with the State Coordination Committee. Chapter–IV is on prevention of an early detection of disabilities. Chapter–V is on Education. Chapter–V contains Sections 26 to 31. This Chapter places obligation on the appropriate Governments and the local authorities to provide free education and other welfare schemes to children with disabilities and students with disabilities. While Chapter–VI deals with employment, Section 39 is an exception to the said Chapter, that provides for reservation to persons with disabilities in educational institutions run by the Government and those receive aid from the Government. The words "children with disabilities" and "students with disabilities" are used in Chapter–V of the Disabilities Act as beneficiaries to various schemes including free education that are to be made by the Appropriate Governments and Local Authorities and "the children with disabilities" and "students with disabilities" should receive liberal interpretation so as to achieve the objectives of the Disabilities Act. 24.Section 39 of the Disabilities Act uses the word "persons with disabilities". According to the petitioner, Section 39 of the Disabilities Act is a code by itself and the same is extracted hereunder: "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." Section 39 of the Disabilities Act uses the word "shall" which denotes that the reservation of 3% for persons with disabilities is a mandatory one. 25.However, the Disabilities Act bas been observed more in breach. Though the Disabilities Act came into force on 07.02.1996, the third respondent took a decision in the year 1999 not to provide reservation for the disabled persons under the Disabilities Act. When the Gujarat Government wrote a letter dated 16.03.2000 to the third respondent for implementation of the Disabilities Act, the third respondent sent a letter dated 30.05.2000 stating that no reservation for physically handicapped for admission to medical courses is permissible, under the Regulations framed by the third respondent Medical Council of https://hcservices.ecourts.gov.in/hcservices/ India. The same was challenged by one Palak Kailashchandra Jain before the Gujaraj High Court. The Gujarat High Court allowed the writ petition on 27.11.2000 and issued a direction to provide 3% reservation to persons with disabilities, in the medical courses, as per Section 39 of the Disabilities Act. 26.Similar argument made here was advanced by the third respondent and the same was rejected by the Gujarat High Court. The Medical Council of India contended that Entry 66 List 1 Seventh Schedule of the Constitution of India covers the Regulations of admission to medical courses and therefore, it would have supremacy over any other law. However, the said contention was rejected. 27.The Kerala High Court as well as the Delhi High Court held that Section 39 of the Disabilities Act occurs in Chapter-VI relating to employment and therefore, Section 39 relates only to post/employment and not to seat/admission in the educational institutions. The judgment of the Kerala High Court was reversed by the Honourable Apex Court in All Kerala Parents Association Vs. State of Kerala [2002 (3) KLT 423 (SC)] in C.A.No.6120 of 2001 decided on 11.09.2002. The Honourable Apex Court held that Section 39 deals with reservation of seats for persons with disabilities in Government educational institutions as well as the educational institutions receiving aid from the Government and necessary provisions there of must be complied with. The judgment of the Delhi High Court was also reversed following the judgment of the Honourable Apex Court in all Kerala Parents Association's case (cited supra). 28.The Chief Commissioner of Disabilities under the Disabilities Act also impressed upon the third respondent to provide reservation under Section 39 of the Disabilities Act. In these circumstances, a resolution was passed on 05.07.2001 by the third respondent providing reservation to locomotory disabled persons with disability in lower limbs between 40 – 60 %. In the said resolution, the visually handicapped persons and persons with hearing impairment are excluded from the benefit of reservation under Section 39 of the Disabilities Act. Furthermore, the third respondent has erroneously proceeded, as if the Disabilities Act categorizes the disabled persons into three categories. The relevant passage in the resolution is extracted hereunder: "... The categories of people under disabilities as classified under the Act covers the following three categories:- 1)Visually Handicapped 2)Persons suffering from hearing defects 3)Physically handicapped with the locomotory disorders" https://hcservices.ecourts.gov.in/hcservices/ 29.This erroneous approach of the third respondent continues even today. The Executive Committee of the third respondent on 30.06.2003 modified the aforesaid eligibility criteria from 40-60% to 50-70% in the case of locomotor disability at lower limbs. This erroneous approach made in 2001 was continued in 2003, since the Executive Committee proceeded as if the persons with disabilities were classified under three categories only. In this regard, the relevant passage in the deliberations of the Executive Committee meeting held on 30.06.2003 is extracted hereunder: "Broadly the persons with disabilities were classified under the following three categories: i) Visually Handicapped ii) Persons suffering from hearing defects iii) Physically handicapped with the locomotory disorders" As stated above, visually handicapped persons, persons suffering from hearing impairment and other disabled persons were excluded from benefit of reservation, in the decision taken by the third respondent on 30.06.2003. 30.The decision of the Executive Committee was approved by the General Body of the third respondent on 20.10.2003. The Regulations was made in terms of the decision of the General Body. The same was questioned before this Court. However, a learned single Judge of this Court upheld that the Medical Council of India could prescribe 50-70% disability in lower limbs, while Section 2