WPC 1352/08 & ors Page No.1 of 36 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 06.07.2010 + WP(C) 1352/2008 & WP(C) 8750/2009 MD. SHAH AFZAL ... Petitioner – versus – MEDICAL COUNCIL OF INDIA & ANR ... Respondent Advocates who appeared in this case: For the Petitioner : Mr Rajan Mani with Ms Ritu Kumar For the Respondent No.1 : Mr Maninder Singh, Sr Advocate with Mr T. Singhdev and Mr Abrar Abdullah For the Respondent No.2 : Mr Anurag Matur AND + WP(C) 6759/2008 MEDICAL COUNCIL OF INDIA ... Petitioner – versus – MD. SHAH AFZAL & ANR ... Respondent Advocates who appeared in this case: For the Petitioner : Mr Maninder Singh, Sr Advocate with Mr T. Singhdev and Mr Abrar Abdullah For the Respondent No.1 : Mr Rajan Mani with Ms Ritu Kumar For the Respondent No.2 : Mr Sachin Datta CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MS JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported in Digest? YES BADAR DURREZ AHMED, J 1. This judgment shall dispose of three writ petitions. Two of them have been filed by Mohd. Shah Afzal and one on behalf of MCI. We shall WPC 1352/08 & ors Page No.2 of 36 refer to Mohd. Shah Afzal as „the petitioner‟ for the sake of convenience in all the three petitions and the Medical Council of India shall be referred to as „the MCI‟, the other parties being the University of Delhi, which shall be referred to as „the Delhi University‟, and the Union of India. 2. The petitioner is an orthopedically handicapped person and has a locomotor disability concerning his lower limbs to the extent of 64%. He has, on more than one occasion, applied for admission to the MBBS course of the Delhi University against seats reserved for persons with disabilities and claims his right under Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as „the said Act‟). The petitioner took the Delhi University Medical Entrance Test in 2008 (DUMET-2008) and secured 41.5% marks in the qualifying papers. He again sat for DUMET-2009, but this time he obtained only 37% marks. The plea of the petitioner is that although there is 3% reservation of seats for physically disabled candidates, those seats go abegging because of the high threshold of minimum 50% marks, which has been applied to all candidates including physically disabled but excluding the candidates belonging to the scheduled castes and scheduled tribes categories (hereinafter referred to as „SC/ST‟). In respect of the SC/ST candidates, the minimum qualifying marks have been relaxed to 40%. The main thrust of the arguments on behalf of the petitioner is that physically disabled candidates should be treated at par with the SC/ST candidates. In other words, all that the petitioner seeks is that the minimum qualifying marks for the entrance examination in respect of physically WPC 1352/08 & ors Page No.3 of 36 handicapped candidates should be reduced to 40% as against the stipulated 50% for general candidates. 3. The petitioner had also approached the Chief Commissioner for Disabilities under the said Act and the said Chief Commissioner, by an order dated 08.09.2007, directed the Delhi University and the MCI to extend the relaxation of marks insofar as the physically disabled candidates are concerned so as to bring it at par with the relaxation given to candidates belonging to SC/ST categories. The Chief Commissioner also directed the MCI to ensure that all government / government aided institutions running medical courses, should extend the relaxation in marks to the physically disabled candidates so as to bring it at par with the relaxation given to SC/ST candidates. It is as a consequence of this order passed by the Chief Commissioner and the fact that despite the said directions the petitioner was not being granted admission despite availability of seats, that the petitioner filed WP(C) 1352/2008 seeking a mandamus that the directions given by the Chief Commissioner in the order dated 18.09.2007 be implemented by the MCI by issuing amended regulations for admission and selection to medical courses in government and government aided institutions for the academic session 2008-2009 and beyond such that the minimum qualifying marks in the qualifying examination and medical entrance test for eligible physically disabled candidates is relaxed to 40% at par with the minimum qualifying marks for SC/ST candidates. WPC 1352/08 & ors Page No.4 of 36 4. Thereafter, MCI filed WP(C) 6759 praying that the order dated 08.09.2007 passed by the Chief Commissioner for persons with disabilities in case No. 3944/2007 be set aside and quashed. The plea taken by the Medical counsel of India was that minimum standards for medical education are to be prescribed by MCI under the Indian Medical Council Act, 1956 (hereinafter referred to as „the IMC Act‟). According to MCI, it is the sole authority to prescribe the standards and that the standards so prescribed by virtue of the Regulations on Graduate Medical Education, 1997 are statutory in nature and cannot be overridden by the Chief Commissioner under the said Act inasmuch as the Chief Commissioner‟s powers and functions are of a recommendatory nature and, in any event, he cannot pass directions contrary to statutory provisions. The stand taken by MCI is that in view of the provisions of Section 39 of the said Act, 3% of the seats in medical colleges have been reserved for persons with locomotor disability of lower limbs. There is no reservation for candidates with other kinds of disabilities inasmuch as that would interfere with the professional work as a doctor. In these writ petitions there is no controversy with regard to the other forms of disabilities and, therefore, we are only concerned with and are only considering the case from the standpoint of physically disabled persons with locomotor disabilities of the lower limbs. It was urged on behalf of MCI that apart from the 3% reservation, there is also a relaxation which has come in subsequently by a notification dated 25.03.2009 whereby the extent of eligible physical disability is not just limited to those candidates who have a locomotor disability of the lower limbs between 50-70% but also to those WPC 1352/08 & ors Page No.5 of 36 whose disability is between 40-50%. Apart from this, by virtue of the same notification dated 25.03.2009, MCI has also relaxed the eligibility criteria for admission in respect of persons with locomotor disability of lower limbs to a minimum of 45% marks as against the earlier threshold of 50% in the qualifying examination and entrance examination for admission to the MBBS course. It was contended on behalf of MCI that the council was alive to the situation and has, therefore, made it easier for eligible physically disabled persons to obtain admission in the MBBS course. At the same time, it was urged that parity with SC/ST candidates cannot be claimed as the category of physically disabled candidates cannot be compared with the category of SC/ST candidates and the two stand on entirely different footings. It was also urged on behalf of MCI that the petitioner having failed to obtain even 40% marks in DUMET-2009 would now have no case whatsoever. 5. The petitioner filed another writ petition being WP(C) 8750/2009 seeking the quashing of the provision in the said notification dated 25.03.2009 which provides for a limited relaxation in the minimum qualifying marks from 50% to 45% for the physically disabled candidates. The petitioner is aggrieved by the fact that although the relaxation of 5% has been given, the relaxation should have been of 10% so as to bring it at par with the minimum qualifying marks of 40% which is applicable in the case of SC/ ST candidates. A writ of mandamus has also been sought directing the MCI to issue amended regulations for admission and selection to the MBBS course so that minimum qualifying marks for the qualifying WPC 1352/08 & ors Page No.6 of 36 examination and medical entrance test for eligible physically disabled candidates is relaxed from 50% to 40% at par with the relaxation in the minimum qualifying marks provided for SC/ ST candidates and also directing that the said amended regulations should operate retrospectively with effect from the date of the order of the Chief Commissioner, that is, with effect from 08.09.2007. A mandamus has also been sought directing the Delhi University to admit the petitioner to the MBBS course for the academic year 2009-2010 against a seat from the 3% seats reserved for persons with disability on the basis of the 41.5% marks obtained by the petitioner in DUMET-2008. 6. The stand of the Delhi University is that it is bound by and follows the minimum standards prescribed by MCI. Since the minimum qualifying marks were 50% in 2008-2009 and the petitioner had obtained only 41.5% marks, he could not be considered for admission against the 3% seats reserved for physically disabled persons. It was further submitted that although in 2009 the minimum qualifying marks were relaxed to 45% for physically disabled persons, the petitioner could not be granted admission because in DUMET-2009 the petitioner had obtained only 37% marks. The submission on behalf of the Delhi University was that even if the marks obtained by the petitioner in DUMET-2008 were to be considered for admission to the academic year 2009-2010, the petitioner would not be eligible because his marks were less than 45% which was the minimum marks prescribed for the academic year 2009-2010. WPC 1352/08 & ors Page No.7 of 36 7. The learned counsel appearing on behalf of the petitioner submitted that by virtue of Section 39 of the said Act, 3% reservation of seats for disabled candidates in government and government aided educational institutions is to be provided for. He placed reliance on All Kerala parents Association v. State of Kerala: 2002 (7) SCALE 198 as also on the decision of the Supreme Court in the case of Deputy Secretary, Ministry of Health v. Sanchita Biswas: CA No. 4604/2000 decided on 18.09.2002 to contend that Section 39 of the said Act relates not just to employment but to reservation of seats for admission of students to government / government aided institutions. There is no controversy with regard to this aspect of the matter and the same has been laid to rest by the aforesaid decisions of the Supreme Court. We are proceeding on the basis that a 3% reservation for physically disabled persons is mandated under Section 39 of the said Act in respect of admission of students to government / government aided institutions which includes admission to MBBS courses offered by the Delhi University. 8. According to the petitioner, the action of the MCI in issuing the notification dated 25.03.2009 providing only 5% relaxation to the disabled candidates has the effect of defeating the provisions of Section 39 in respect of seats reserved for persons with disabilities in MBBS courses. It was contended that while reservation to the extent of 3% was granted in respect of admission to the MBBS courses, this has proved to be illusory inasmuch as the 3% seats reserved for persons with disabilities has remained largely unfilled. This position is factually correct. Thus, for considering the rival WPC 1352/08 & ors Page No.8 of 36 contentions of the parties, we are working on the factual basis that though there has been a 3% reservation for persons with disabilities, that has not actually worked out in reality in the sense that there have not been enough candidates who have crossed the threshold so as to be eligible for admission. The plea of the petitioner is that because of the fact that the 3% seats reserved for physically disabled persons have remained unfilled, there is a strong case for relaxing the threshold by lowering the minimum qualifying marks to 40% and bringing it at par with the minimum qualifying marks applicable for SC/ ST candidates. 9. Another plea taken by the petitioner was that once the Chief Commissioner, by his order dated 08.09.2007 had directed MCI to extend the relaxation which was given to SC/ ST candidates to persons with disabilities also, it was incumbent upon MCI to have implemented the said direction. It was also contended that the petitioner had obtained 41.5% marks in DUMET-2008 held in May, 2008 and at that point of time the Chief Commissioner‟s order dated 08.09.2007 had not been challenged by the MCI. Yet, the petitioner was not called for admission counseling held on 09.07.2008 by the Delhi University. It was also pointed out that 10 out of the 12 seats reserved for physically disabled persons in the MBBS course in Delhi University in 2008-2009 remained unfilled and were subsequently merged into the general category. The contention of the petitioner was that on the date on which the counseling was done on 09.07.2008, the Chief Commissioner had already directed that the minimum marks be relaxed to 40% in respect of the physically disabled candidates also. Yet, the WPC 1352/08 & ors Page No.9 of 36 petitioner had not been called for counseling. Consequently, it was submitted that the petitioner ought to have been granted admission and the fact that he was not granted admission on the basis of his having obtained 41.5% marks should not be held against him while considering his case for admission in 2009-2010. Consequently, on the strength of the Supreme Court decision in the case of Dolly Chhanda v. Chairman, JEE: (2005) 9 SCC 779, it was urged that though the petitioner obtained only 37% marks in DUMET-2009, his 41.5% marks in DUMET-2008 should be considered for admission to the academic session of 2009-2010. 10. Another point taken by the petitioner was that the minimum qualifying marks for MBBS courses is the minimum standard of fitness of candidates which MCI is empowered to prescribe under Section 19-A of the IMC Act. Reliance was placed on the Supreme Court decision in Dr Preeti Srivastava & Anr. V. State of MP and Ors: (1999) 7 SCC 120. It was contended that if SC/ST candidates with 40% marks or more are deemed fit for filling of the seats reserved for SC/ ST categories, then, clearly, persons with disabilities with 40% or more marks must also be deemed fit for filling of the seats reserved for persons with disabilities. Consequently, it was submitted that the action of the MCI of providing relaxation only up to 45% was arbitrary, illegal, unsustainable in law and had the effect of defeating the intent and objective of Section 39 of the said Act. It was also submitted on behalf of the petitioner that it has been recognized that persons with disabilities are severely disadvantaged and have been suffering from historical discrimination and denial of opportunity and as such, positive WPC 1352/08 & ors Page No.10 of 36 measures need to be taken to integrate them into the social mainstream and that Section 39 of the said Act is one such measure. Several decisions and an article were relied upon by the learned counsel for the petitioner. They include:- (i) Javed Abidi v. Union of India: (1999) 1 SCC 467; (ii) Indra Sawhney v. Union of India: AIR 1993 SC 477; (iii) Union of India v. Jagmohan Singh : WP(C) 11818 and 13627-28/2004 decided on 07.12.2007 by a Division Bench of this Court; and (iv) All India Confederation of Blind v. Union of India: order passed by the Supreme Court in IA No. 4/1999 dated 19.03.2002. (v) Disability Law vis-à-vis Human Rights: (2005) 3 SCC (Jour) 1; 11. It was also contended that reputed institutions such as the All India Institute of Medical Sciences and the Indian Institute of Technology were providing disabled candidates the same relaxation in the minimum qualifying marks for admission as provided to the SC/ ST candidates. Therefore, it was submitted that there is no reason as to why the MCI ought not to follow the same principle and give 10% relaxation in the minimum qualifying marks for admission in respect of the physically disabled persons also, as is the case with SC/ ST candidates. 12. The learned counsel for the petitioner further submitted that the Chief Commissioner under the said Act functions as a quasi-judicial authority and has ample powers to decide the issues entrusted to it. A reference was also made to Section 58 and 59 of the said Act as also to the WPC 1352/08 & ors Page No.11 of 36 decision of a learned Single Judge of this Court in the case of Dalip Kumar Chadha v. AIIMS: WP(C) 8926/2005 decided on 14.01.2008 to submit that wide powers had been given to the Chief Commissioner and that an order passed by him was binding on the authorities. It was also contended that the “court” of the Chief Commissioner is a fully functioning “court” and a reference was made to various case reports of cases decided by the Chief Commissioner which had been obtained from the website of the Chief Commissioner. It was contended that the order of the Chief Commissioner dated 08.09.2007 was legal and binding on the authorities. There was no illegality or infirmity in the said order in terms of jurisdiction or procedure or in consideration of relevant factors and, therefore, this Court ought to direct the implementation of the said order dated 08.09.2007 and thereby grant physically disabled persons parity with SC/ ST candidates insofar as the minimum qualifying marks are concerned, for admission to the MBBS courses. Consequently, it was submitted that the petitioner be granted admission in the academic session 2009-2010. 13. On the other hand, Mr Maninder Singh, the learned senior advocate appearing on behalf of the MCI, submitted that the petitioner as also other physically disabled persons cannot claim parity with SC/ ST candidates. He referred to the Supreme Court decision in the case of Chattar Singh v. State of Rajasthan: (1996) 11 SCC 742 where persons belonging to Other Backward Castes claimed parity with SC/ ST candidates with regard to employment. The Supreme Court did not grant that parity and held that OBCs did not suffer from the same social handicap which the WPC 1352/08 & ors Page No.12 of 36 SC/ST candidates had been subjected to. Similarly, the learned counsel for the MCI submitted that the disabled persons cannot be equated with persons belonging to SC/ ST categories and that the decision in the case of Chattar Singh (supra) would squarely apply to the facts and circumstances of the present case. It was also contended on behalf of the MCI that Section 39 read with Section 33 of the said Act indicates that there should be 3% reservation for physically disabled persons with regard to admissions to educational institutions belonging to the government or aided by the government. It was contended that while reservation is provided for, there is no stipulation in the said Act with regard to relaxation of the minimum qualifying marks. The minimum standards are prescribed by the MCI and cannot be altered by the Chief Commissioner. As such, the order dated 08.09.2007 passed by the Chief Commissioner, whereby he directed the MCI to grant relaxation in the minimum standards to persons with disability to bring them at par with SC/ST candidates, was beyond the powers given to the Chief Commissioner under the said Act as also contrary to the provisions of the IMC Act. Referring to Sections 58 and 59 of the said Act, the learned counsel for the MCI submitted that the said Act does not empower the Chief Commissioner to create any new rights which are not spelt out in the said Act. Consequently, the Chief Commissioner, according to the learned counsel, could not have directed the MCI and the Delhi University to maintain parity with SC/ ST Candidates in the matter of admission to the MBBS courses. WPC 1352/08 & ors Page No.13 of 36 14. In any event, it was submitted that the order dated 08.09.2007 passed by the Chief Commissioner was recommendatory and was not binding. It was also contended that a mandamus could not be issued directing the legislature or any subordinate thereof to legislate. Consequently, the petitioner was not entitled to the directions he was seeking and the order dated 08.09.2007 passed by the Chief Commissioner was liable to be set aside. A reference was also made to the decision in the case of Dr Raman Khanna v. University of Delhi: CW 2670/2003 decided on 11.08.2003 by a learned Single Judge of this Court with regard to the submission that preference ought to be given to persons with 50-70% disabilities over persons in the 40-50% category. It was submitted that it was in consequence of such a suggestion that the amendment of 25.03.2009 was brought about. A reference, by way of persuasive value, was also made to another decision of a learned Single Judge of this Court in the case of Fahad Ansari v. AIIMS: 109 (2004) DLT 163 where it was noted that it was not permissible to transverse beyond the minimum qualification set down by MCI. A reference was made to the decision of the Supreme Court in the case of Indian Overseas Bank SC and ST Employee’s Welfare Assocation & Ors v. UOI & Ors: (1996) 6 SCC 606 to submit that the powers of the Commissioner cannot be equated to the powers of a civil court. A further reference was made to the Supreme Court decision in Ajoy Kumar Banerjee v. Union of India: (1984) 3 SCC 127 to submit that every kind of differentiation does not necessarily imply that there is discrimination. Paragraph 50 of the said decision reads as under:- WPC 1352/08 & ors Page No.14 of 36 “50. Differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution. This principle is too well-settled now to be reiterated by reference to cases. There is intelligible basis for differentiation. Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature. Had it been held that the scheme of 1980 was within the authority given by the Act, we would have rejected the challenge to the Act and the scheme under Article 14 of the Constitution.” 15. The decision of the Supreme Court in the case of Suresh Seth v. Commissioner: AIR 2006 SC 767 was referred to for the proposition that no mandamus can be issued directing a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation, pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a particular law. Paragraph 5 of the said decision was referred to and the same reads as under:- “5. Learned counsel for the appellant has also submitted that this Court should issue directions for an appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely that of a member of the Legislative Assembly and also of Mayor of a Municipal Corporation. In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the court. That apart this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction