Anmol v. Union of India & Ors. (with AS v. State of Rajasthan & Ors.)

[2023:RJ-JP:39699-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Special Appeal Writ No. 683/2023
in
S.B. Civil Writ Petition No. 13124/2023

Anmol ----Appellant
Versus
(1) Union of India, through Secretary, Department of Health and Family Welfare, Ministry of Health and Family Welfare, New Delhi
(2) Principal Secretary to Government, Medical Education Department, Rajasthan, Jaipur
(3) Office of Medical Counselling Committee (MCC), through Director General, Directorate General of Health Services (DGHS), Ministry of Health and Family Welfare, Government of India, New Delhi
(4) The Deputy Director General (ME), Directorate General of Health Services, New Delhi
(5) National Medical Commission (NMC), through its Chairman, New Delhi
(6) Chairperson, National Testing Agency (NTA), New Delhi
(7) NEET UG Medical and Dental Admission/Counselling Board-2023, RUHS College of Dental Sciences (Government Dental College), through its Chairman, Jaipur
(8) Lady Hardinge Medical College and Associated Hospitals (LHMC), through its Director, New Delhi ----Respondents

Connected with

D.B. Special Appeal Writ No. 686/2023
in
S.B. Civil Writ Petition No. 13148/2023

AS ----Appellant
Versus
(1) State of Rajasthan, through the Secretary, Medical Education Department, Government of Rajasthan, Jaipur
(2) NEET-UG (Medical/Dental) Admission/Counseling Board-2023, through its Chairman, RUHS College of Dental Sciences, Government Dental College, Jaipur
(3) Medical Counseling Committee, through its Chairman, New Delhi
(4) Atal Bihari Vajpai Institute of Medical Sciences and Ram Manohar Lohia Hospital, New Delhi
(5) SMS Medical College and Hospital Jaipur, through its Convener Medical Board, Jaipur ----Respondents

For Appellant(s): Mr. Tribhuvan Narayan Singh; Mr. Saransh Saini with Mr. Sanjeev Kumar
For Respondent(s): Ms. Manjeet Kaur; Mr. Angad Mirdha; Mr. Vishvas Saini for Mr. MS Raghav; Mr. Harshal Tholia for Mr. Vibhuti Bhushan Sharma, AAG

HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Judgment

Reportable

Pronounced on: 20.12.2023

By the Court: (Per Hon'ble Mr. Justice Manindra Mohan Shrivastava)

[NyayVidhan notes: the second appellant, 17 years old according to her Disability Board certificate, is shown by the initials 'AS' (13.10.2026); the original PDF, which names her, is not attached. (1) Parentage, ages and addresses in the cause titles are omitted here; in the two certificates extracted in paragraphs 30 and 32 the candidates' ages and parents' names are shown as [omitted] and the NEET roll numbers as [withheld]. The official PDF is authoritative. (2) The opening paragraph is unnumbered in the print; the Court's numbering starts at 2. (3) The Appendix 'H-1' table extracted in paragraph 25 and the two certificates extracted in paragraphs 30 and 32 are re-set row by row from the rendered pages ('|' separates the printed columns; within a cell, separate entries are divided by ';'); the wording is unchanged. (4) The footnote markers in paragraphs 17, 18 and 20 are shown as [1], [2] and [3]; the footnotes (lists of authorities cited by counsel) are collected at the end. (5) Slips are kept as printed, among them: paragraph 2 calls the two appeals 'D.B. Civil Writ Petition No. 683/2023' and 'No. 686/2023'; 'NNET' (paragraph 18); 'Raghav Agrawal' (paragraph 52) for 'Raghav Agarwal' (footnote 1); 'Vinay Kumar Mali' (paragraph 57) for 'Vijay Kumar Mali' (footnote 1); 'Dashrath Kumar Kuldeep ... [D.B. Civil Special Appeal Writ No. 463/2017]' (paragraph 54) against 'D.B.C.W.P. No. 463/2017 Dashrth Kumar Kuldeep' (footnote 1).]

The relevant factual matrix of the case are stated infra:-

2. Appellant-Anmol in D.B. Civil Writ Petition No. 683/2023 and appellant-AS in D.B. Civil Writ Petition No. 686/2023, who belong to disabled category, appeared in the NEET (UG)-2023 examination for admission to undergraduate medical course. The certificate of disability issued by the designated certification board in respect of the aforesaid two appellants declared both of them ineligible for undertaking the undergraduate medical course.

3. Aggrieved by such declaration of ineligibility, both the appellants filed writ petitions, which were dismissed by the learned Single Judge.

4. The aforesaid two appeals were heard analogously as both are based on almost similar facts involving issues with regard to eligibility under the same set of Rules and Guidelines in the matter of admission to undergraduate medical course. The two appeals are, therefore, being decided by this common order.

5. Appellant-Anmol belongs to OBC (NCL) category and is also a person with disability (PwD). Earlier a disability certificate (Form-II) was issued in his favour the under the Rights of Persons with Disability Act, 2016 read with the Rights of Persons with Disability Rules, 2017, issued by the State of Rajasthan on 21.12.2017 mentioning locomotor disability with 75% permanent physical impairment in relation to his both lower limbs. Subsequently, another certificate was issued in his favour by the competent authority which again declared Anmol as a person having locomotor disability and speech & language disability, having overall permanent physical impairment of 58%.

6. Appellant-AS belongs to General category candidate and is a person with disability. The disability certificate in her favour was issued in Form No.-IV issued by the competent authority of the State on 19.12.2022 declaring that she is having locomotor disability and diagnosed as “ERB’s PALSY RIGHT UPPER LIMB” DISABILITY 50%.

7. For the purpose of grant of admission to undergraduate course in medical colleges in the country, applications were invited from all candidates desirous of seeking admission to such course by the National Testing Agency (‘NTA’ for short). Both, appellant-Anmol and appellant-AS applied for admission to undergraduate medical course in the category of Persons with Disability. National Eligibility Entrance Test (UG)-2023 was conducted by the National Testing Agency on 07.05.2023, wherein, all the candidates including the present two appellants appeared.

8. Appellant-Anmol secured the rank 1329 in the category of Persons with Disability and a scorecard to that effect was issued in his favour. Appellant-AS secured rank 201 in the disability category.

9. Under the relevant scheme and guidelines for admission as contained in the information bulletin of NEET (UG)-2023 issued by the National Testing Agency, 5% seats out of each of General, General-EWS, OBC-NCL, SC and ST category were reserved for persons with disability, being horizontal reservation. As per Clause 6 and 7 of the information bulletin (guidelines), it was provided that the candidates with disability shall be considered for admission in medical course against 5% of the total seats, in accordance with the criteria prescribed under the Regulation of Graduate Medical Education, 1997 as amended upto 13.05.2019, as per Appendix-VI. It also issued advisory to candidates who consider themselves eligible in the disability category, to ensure their eligibility by getting themselves examined at any Government Medical College/District Hospital/Government Hospital. It provided that such Government Medical College/District Hospital/Government Hospital shall issue a disability certificate in reference to Chapter-VII of the Right of Persons with Disability Rules, 2017. It was, however, clarified that such disability certificate does not confer any right on any candidate who seek admission in medical course in PwBD category with persons with benchmark disability quota. It also clarified that such certificate shall be to ascertain whether a candidate can apply to National Testing Agency for appearing in the NEET (UG) 2023 under PwBD quota only.

10. Clause (c) further provided that thereafter the candidates, upon selection under PwBD category, shall have to produce a disability certificate issued by the Disability Assessment Board (‘DAB’ for short), which shall have assessed the candidate in reference to the criteria prescribed under the Regulations of Graduate Medical Education, 1997 as amended up to 13.05.2019. The candidates, therefore, were required to appear after declaration of result, before any of the 16 designated disability assessment board, so as to determine where they may register or participate in the common online counseling toward admission to medical courses. The list of 16 designated disability centers was annexed as Appendix-VII with the information bulletin.

11. Clause (d) further provided that in case the candidates are found to be ineligible by the designated Disability Assessment Board, in reference to the criteria prescribed under the Guidelines of Graduate Medical Education, 1997 as amended on 13.05.2019, they may not register or participate in the common online counseling and any online provisional allotment of the medical college shall be entirely fraudulent on the part of the candidate. It was clarified that the certificate issued by the authorized centers designated for the purpose of DGHS, shall only be considered for admission to medical course and no other certificate issued by any other Government Medical College/District Hospital/Government Hospital will be accepted.

12. Appellant-Anmol and appellant-AS, both appeared before two different designated Disability Assessment Board to seek appropriate certification of their eligibility for the purpose of appearing in the counseling and, if allotted, for admission to medical course under the graduate medical course.

13. While appellant-Anmol was examined by Disability Assessment Board in the Lady Hardinge Medical College & Associated Hospitals, New Delhi; appellant-AS was examined by Disability Assessment Board in Atal Bihari Vajpayee Institute of Medical Sciences and Dr. Ram Manohar Lohia Hospital, New Delhi.

14. The two appellants were examined by the Disability Assessment Boards in two different designated centers. The boards, after physical examination of both the appellants, issued certificates specifying nature and extent of disability with the declaration that they are ineligible to undertake the medical course.

15. Aggrieved by such declaration of ineligibility, writ petitions were filed. As the learned Single Judge did not interfere with the assessment and declaration of ineligibility by the Disability Assessment Board, the writ petitions of the respective petitioners, Anmol and AS, were dismissed giving rise to aforesaid two appeals.

Appellants’ submissions:

16. Submission on behalf of learned counsel for the appellant-Anmol is that the certificate of disability and declaration of ineligibility dated 21.07.2023 issued by the Disability Assessment Board is not in accordance with Appendix “H-1” of the Regulations of Graduate Medical Education, 1997 as amended vide notification dated 13.05.2019. The statutory guidelines dated 13.05.2019 requires the certificate of disability to be issued in accordance with the Rights of Persons with Disability Rules, 2017 and the extent of specified disability in a person is required to be assessed in accordance with the “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Right of Persons with Disability Act, 2016” notified in the official gazette of India by Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 04.01.2018. The reasons assigned to declare appellant-Anmol ineligible is not based on examinations and observations with reference to the relevant guidelines contained in Appendix “H-1” of the guidelines dated 13.05.2019. It does not contain any observation in medical opinion in respect of locomotor disability in regard to both hands intact that intact sensation, sufficient strength and range of motion, as these being essential to be considered eligible for medical course as per Appendix “H-1” of the guidelines. The conclusion, remark and reason of the medical experts only mention the type of disability and specified disability the person is having. No clear inference from such conclusion can be drawn that medical experts have assessed and examined the appellant in respect of locomotor disability in regard to both hands intact with intact sensation, strength and range of motion. In the absence of proper examination and observations, the certificate of disability and declaration of ineligibility cannot be said to be issued as per the statutory scheme of notification dated 13.05.2019, in accordance with the Regulations of 1997 as amended vide notification dated 13.05.2019. The certificate of disability has not been issued in accordance with Rights of Persons with Disability Rules, 2017. The medical authority or any other notified competent authority, after assessing the disability in terms of the relevant guidelines and after specifying that the person examined is a person with disability, is required to issue certificate of disability in Form-V, VI, VIII, as the case may be. In case a person is found ineligible then reasons are required to be conveyed in writing, in the manner provided under the Form-VIII. The designated Disability Assessment Board issued certificate of disability which is not in the prescribed format as mentioned in the aforesaid relevant Rules, which is amended as per guidelines dated 13.05.2019. The certificate of disability and declaration of ineligibility by the Disability Assessment Board being not in conformity with the applicable statutory guidelines and not based on proper examination so also not containing detailed reasons for arriving at conclusion and at variance with what has been certified in the disability certificate issued by the State authorities, the respondents were obliged under the law to direct re-examination of the appellant by the concerned Disability Assessment Board or any other designated Disability Assessment Board. The action of the respondents in declaring appellant-Anmol ineligible is, therefore, not only against the statutory guidelines but also arbitrary, denying the petitioner, a person with disability, his valuable right to pursue undergraduate medical course.

17. In support of his submission, learned counsel for the appellant has relied upon several authorities.[1]

18. Learned counsel appearing for appellant-AS would submit that rejection of candidature of appellant-AS by declaring her medically unfit to undertake the undergraduate medical course is illegal and arbitrary as the disability of AS is within the permissible range of 40-80% as diagnosed and even in the certificate, the extent of disability is specified as 60% only. As the disability is more than the benchmark disability of 40%, denial of benefit of reservation is unsustainable in law. In the disability certificate dated 19.12.2022 issued in favour of the appellant-AS even prior to appearing in the NNET (UG) examination, permanent physical impairment and disability has been assessed to the extent of 50% and the locomotor disability is diagnosed “ERB’s PALSY RIGHT UPPER LIMB” DISABILITY. In the declaration given by the Disability Assessment Board after medical examination, it has not been clearly stated as to how the disability specified as “ERB’s PALSY RIGHT UPPER LIMB” DISABILITY is diagnosed as a cause for medical unfitness to pursue the undergraduate medical course. The specified disability has not been declared as a ground for medical unfitness under the Graduate Medical Education Regulations (Amendment) Rules, 2019. The Disability Assessment Board acted without application of mind with reference to the provisions relating to extent of disability and grounds of medical unfitness stated in the Graduate Medical Course (Amendment) Rules, 2019. There is no basis for discerning that the requirement of “both hands intact with intact sensation, sufficient strength and range of motion” are essential to be considered eligible for medical course, is not fulfilled only for the reason that the appellant-AS suffers from a specified nature of disability called as “ERB’s PALSY RIGHT UPPER LIMB” DISABILITY. It is, therefore, contended that the appellant-AS diagnosed with 60% disability, which is well within the upper limit of 80% and more than 40% benchmark disability, and there being no material to opine ineligibility to undertake undergraduate medical course, rejection of the candidature on the ground of unfitness is completely baseless, arbitrary and being sense logic rationale. In support of his submissions, learned counsel has placed reliance upon several judgments.[2]

19. Learned counsel appearing for both the appellants raised common submissions that the certificate of disability issued by the State authority under the Right of Persons with Disability Act, 2016 read with the Rights of Persons with Disability Rules, 2017 framed by the Central Government and the Disability Rules of 2018 framed by the State Government on one hand, and the disability certificate of ineligibility issued by the Disability Assessment Board constituted for the purpose of assessing eligibility for admission to graduate medical admission course on the other, are giving conflicting results of examination regarding existence and extent of disability and, in any case, a case for sending the appellants for re-examination by one of the designated Disability Assessment Board was made out but the application made in this regard was not accepted and was mechanically rejected without assigning any reasons. Therefore, a direction is required to be issued for re-examination of the appellants.

Respondents’ submissions:

20. On the other hand, learned counsel appearing for National Medical Commission, Union of India and State Government opposed the prayer of the appellants by submitting that insofar as the admission to undergraduate medical courses are concerned, though the provision for reservation to the extent of 5% seats to persons with benchmark disability has been provided, keeping in view the level and extent of physical fitness which a medical professional is required to possess, specific provisions have been made in Graduate Medical Education Regulations, 1997 as amended vide notification dated 13.05.2019. It is contended that the disability certificates which are issued by the competent authorities under the provisions of Disability Act, 2016 read with Central Rules of 2017 and State Rules of 2018 certify broadly the nature and extent of disability, however, specific conditions of eligibility have been laid down under the notification dated 13.05.2019 with reference to permissible limits of disability and a person cannot claim eligibility and fitness only on the basis of percentage of locomotor disability alone. Referring to the provisions contained in notification dated 13.05.2019 read with statutory Form “H-1” which forms part of the notification dated 13.05.2019, it is contended that where a candidate is desirous of seeking admission to graduate medical course, law requires maximum limit of disability and at the same time also provides that if the candidate suffers from particular type of disability, irrespective of percentage of locomotor disability, he would not be eligible to undertake graduate medical course. It is further contended that the requirement in the information bulletin that the candidate should get themselves examined by the competent authority constituted for the purpose of issuing disability certificate is to ensure that a candidate, before participating in the process of selection, need to satisfy with regard to eligibility to appear in the examination and also his entitlement to admission against seats reserved for persons with benchmark disability. That would not mean that those certificate issued by the State authority are binding and conclusive. The requirement of getting medically examined by one of the designated Disability Assessment Board is prescribed under the law in those cases where a person suffers from locomotor disability and is desirous of pursuing graduate medical course. Additional statutory requirements have been provided under the notification dated 13.05.2019 which amended existing regulation of Graduate Medical Education, 1997. Such eligibility requirements are specified for the purposes of admission to graduate medical course. Therefore, it is argued that even if a particular candidate suffers from benchmark disability within the permissible range of disability, additionally, the candidate should not suffer from the kind of disability provided under the special provisions contained in Form (Schedule “H-1”) appended to notification dated 13.05.2019. The appellants were medically examined by the designated Disability Assessment Board with reference to not only the benchmark disability but also whether they are fit to undertake graduate medical course. The board consisted of highly qualified experts and the medical examination of the appellants was conducted in a fair manner by a team of experts in the field of medical science. After thorough medical examination, a fair assessment on objective criteria was made and it was opined that the two appellants, suffering from certain types of disabilities, are not fit to undertake graduate medical course. The experts opinion, in the absence of violation of any statutory provisions much less any allegation of malafide or competence, may not be interfered with in view of settled legal position that the scope of interference with the opinion of experts is extremely narrow and limited to specified grounds and the Court would not sit over the same as another body of experts to substitute its own opinion in place of that by the experts. The appellants’ claim of eligibility to undertake graduate medical course is based only on the percentage of locomotor disability in ignorance of the fact that on account of appellants having suffered from specific type of disability, were not eligible. Such criteria is statutorily prescribed in Schedule “H-1”. In support of their submissions, learned counsel for the respondents relied upon several judgments.[3]

Analysis, reasoning and conclusion:

21. During the course of hearing, this Court directed the respondents to submit, in a sealed cover, the relevant records relating to medical examination of the two appellants by Disability Assessment Boards. Learned counsel appearing for the respondent-Union of India has submitted those records of medical examination in two sealed covers, one relating to appellant-Anmol and the other relating to Appellant-AS.

22. In order to give effect to the proclamation on the full participation and equality of the people with disabilities in Asian and Pacific Region of India, Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Amongst other beneficial provisions mandating framing of scheme for ensuring employment of persons with disabilities, Section 39 mandated that all Government educational institutions and other educational institutions, receiving aid from Government, shall reserve not less than 3% seats for persons with disabilities. In exercise of Rule making power, the Central Government framed Rules of 1996 for the purpose of carrying out the objective of the Act. The aforesaid Act was repelled by a subsequent enactment known as the Rights of Persons with Disabilities Act, 2016. New Rules were framed by the Central Government known as Rights of Persons with Disability Rules, 2017. Amongst other beneficial provisions, Section 32 of the new Act also provided for reservation in higher educational institutions mandating that all Government institutions of higher education and other higher educational institutions, receiving aid from the Government, shall reserve not less than 5% seats for persons with benchmark disabilities. It also provided for upper age relaxation of 5 years for admission in institutions of higher education. Chapter-X deals with certification of specified disability. Under that chapter, Section 56 provides for guidelines for assessment of specified disability; Section 57 specifies designation of certifying authorities and Section 58 lay down procedure for certification. Chapter-XI contains provisions with regard to constitution of Central and State advisory boards on disability and district level committee. Parliament enacted Indian Medical Council Act, 1956 to provide for the re-constitution of the Medical Council of India and the maintenance of medical register for India and for the matters connected therewith. In exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India, with previous sanction of the Central Government, framed Regulations known as the Regulations of Graduate Medical Education, 1997 which deals with the competencies laying broad guidelines with regard to admission, selection, counseling, migration, training, teaching approach, curriculum, internship etc. The aforesaid Regulations were amended from time to time which also included provisions for reservation in admission to graduate courses for the benefit of persons with benchmark disabilities. The Regulations of 1997 was amended vide notification dated 22.01.2018 whereby the Clause 3 of Chapter-II under the heading “Admission to Medical Course and Eligibility Criteria” was amended. It provided that 5% seats of the annual sanctioned intake capacity shall be filled by the candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disability Act, 2016, based on the merit list of ‘National Eligibility Entrance Test’. It further provided that for this purpose, the specific disability contained in the schedule to Rights of Persons with Disability Act, 2016 is annexed as Appendix-”G”. Thereafter, vide notification dated 04.02.2019, the Regulations of 1997 were further amended under the heading ‘Admission to Medical Course-Eligibility Criteria’ and Regulation (3) was substituted, including in respect of admission of students with specified disabilities. By amendment vide notification dated 04.02.2019 (Regulations of Graduate Medical Education (Amendment), 2019), it was now provided that 5% of the annual sanctioned intake capacity in Government or Government aided higher educational institutions shall be filled up by candidates with benchmark disabilities in accordance with the provisions of the Act of 2016, based on the merit list of NEET and for this purpose, the specified disability contained in the Schedule of the Act of 2016 is annexed in Appendix-”G”. It was provided that the eligibility of the candidate to pursue a course in medicine with specified disability shall be in accordance with Appendix-”H”. A new Appendix-”H” containing guidelines was added which contained guidelines regarding admission of students with specific disability under the Act of 2016 with respect to admission in MBBS. Vide notification dated 13.05.2019, in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Board of Governors, with the previous sanction of the Central Government, made regulations to further amend the Regulations of 1997, called as “Graduate Medical Education Regulations (Amendment), 2019”. By this amendment, Appendix “H”- “Guidelines regarding admission of students with specified disabilities” under the Rights of Persons with Disability Act, 2016 with respect to admission in MBBS was substituted by Appendix “H-1”. Appendix “H-1” contained guidelines regarding admission of students with specific disability under the Right of Persons with Disability Act, 2016 in respect to admission in MBBS course.

23. Information bulletin for admission to undergraduate medical course through NEET (UG) 2023, which has been placed on record along with the petition filed by Anmol and also along with the reply of the National Medical Commission, lay down reservation policy for admission to MBBS and BDS course. Provision of reservation for persons with disability as per requirement of the Act of 2016 and the Rules made thereunder was made under Clause (6.2) of the bulletin. Reservation against 5% of seats in each of General, General-EWS, OBC-NCL, SC and ST category (horizontal reservation) were provided. Being relevant in the present case, Clause 6.2 is extracted herein below: “6.2 Reservation Policy for Admission to MBBS and BDS Course. xxx ➢Scheduled Caste (SC)-15% of seats in every course. ➢Scheduled Tribe (ST)- 7.5% seats in every course. ➢Persons with Disability (PwBD)- 5% seats in each of Gen, Gen-EWS, OBC-NCL, SC and ST category setas (Horizontal reservation). 1. Candidates who want to avail the benefits of PwBD reservation in admission to MBBS/BDS course, the disability norms as prescribed by NMC (earlier known as MCI)/DCI norms will be adhered with, and only those candidates will be eligible for the benefit of reservation.” In no uncertain words, it was clearly stated that for availing the benefits of reservation of persons with disability PwBD, it is the disability norm which is prescribed by National Medical Commission (constituted under the National Medical Commission 2019 which substituted the Indian Medical Council Act, 1956) will be adhered with and only those candidates will be eligible for the benefit of reservation. Clause 6.3, 6.4, 6.5 contained guidelines relating to persons with PwBD. Clause 6.6 provides for reservation in Central Institutes/Universities in the manner that 5% seats (Horizontal Reservation) for PwBD candidates would be provided with the clarification that in the State Quota Seats/Universities/Institutions/Private Medical Colleges under the State Governments, reservation policy of the concerned State Government shall apply. Clause 6.7 lay down guidelines for PwBD candidates. It being relevant in the present case, is extracted herein below: “6.7 Guidelines for PwBD Candidates a. The candidates with a Disability shall be considered for admission in medical course against 5% of the total seats, in accordance with the criteria prescribed under the Regulation on Graduate Medical Education (1997) as amended up to 13-05-2019. b. Candidates who consider themselves eligible for this category are advised to ensure their eligibility by getting themselves examined at any Government Medical College/District Hospital/Government Hospital. Such Government Medical College/District Hospital/Government Hospital shall issue a Disability Certificate in reference to Chapter-VII to the Rights of Persons with Disabilities Rules, 2017. Such a Disability Certificate is issued as per the Schedule to the Rights of Persons with Disabilities Act, 2016, and the Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 4th January 2018 and does not confer any right on any candidate to seek admission in a medical course under PwBD Quota. The aforesaid Certificate shall be ascertain whether a candidate can apply to NTA for appearing in NEET (UG) – 2023 under the PwBD Quota only. c. Thereafter, the candidates, upon selection under PwBD Category, shall have to produce a Disability Certificate issued by the Disability Assessment Board, which shall have assessed the candidate in reference to criteria prescribed under the Regulations on Graduate Medical Education, 1997 as amended up to 13.05.2019. Thus, it is relevant that the candidates after a declaration of the result have to appear before the 16 designated Disability Assessment Board so as to determine whether they may register or participate in the common online Counselling towards admission to medical courses. List of the 16 Designated Disability centres has been annexed (Appendix-VII). d. In case candidates are found ineligible by the 16 designated Disability Assessment Board, in reference to criteria prescribed under the Regulations on Graduate Medical Education, 1997 as amended on 14.05.2019, they may not register or participate in the common online Counselling and any online provisional allotment of the medical college shall be entirely fraudulent on the part of the candidate. It is relevant that physical verification of various certificates including academic as well as Disability Certificate is only upon reporting for admission to the medical college. e. It is further clarified that the certificates issued by the authorized Centres designated for the purpose of DGHS, shall only be considered for admission to the medical courses and no other certificate issued by any other Government Medical College/District Hospital/Government Hospital will be accepted. f. The Disability Certificate to be issued in the format given in Appendix-VI has to be issued by the designated Centres, as per the criteria prescribed under the Regulations on Graduate Medical Education (1997) as amended upto 14.05.2019, w.r.t. common conselling conducted by MCC/DGHS for All India Quota seats and for Medical Institutions that are subject to common counselling of MCC/DGHS. g. Likewise, the designated Counselling Authorities of State/UT Governments shall constitute Disability Assessment Boards/Centres for assessing the suitability of the candidate in reference to criteria prescribed under the Regulations on Graduate Medical Education (1997) as amended up to 14.05.2019 and shall notify the same on their respective websites. h. The reservation policy, as prescribed by the government from time to time will be followed by the admitting institutes. The candidates are advised to look for the details at the time of admission.” The aforesaid guidelines clearly stipulated that the candidates with disability shall be considered for admission in medical course against 5% of the total seats, in accordance with the criteria prescribed under the Regulation of Graduate Medical Education, 1997 as amended up to 13.05.2019. It was also clarified that those candidates who consider themselves eligible are advised to ensure eligibility by getting themselves examined at any Government Medical College/District Hospital/Government Hospital, who shall issue a disability certificate in reference to Chapter-VII of the Rules of 2017. It was further made clear that such certificate does not confer any right on any candidate to seek admission in a medical course under the PwBD Quota and such certificate are only to ascertain whether a candidate can apply to NTA for appearing in the NEET (UG) 2023 under the PwBD Quota only.

24. The aforesaid guidelines made it clear that the candidates, upon selection under PwBD category, shall have to produce disability certificate issued by the Disability Assessment Board which shall have assessed the candidate in reference to criteria prescribed under the Regulations of 1997 as amended up to 13.05.2019. Therefore, the candidates were required to appear before any of the 16 designated Assessment Boards so as to determine whether they may register or participate in the online counselling towards admission to the medical course. List of 16 designated centers was annexed as Appendix-VII with the information bulletin. The aforesaid guidelines also made it clear that those who are found ineligible may not register or participate in the counselling and any online provisional allotment shall be fraudulent on the part of the candidate. It was clarified that the certificate issued by authorized centers designated for the purpose of DGHS, shall only be considered for admission to the medical course and no other certificate issued by any other Government Medical College/District Hospital/Government Hospital will be accepted. Moreover, it was further provided that disability certificate to be issued in the format given in Appendix-XI has to be issued by the designated centers as per the guidelines prescribed under the Regulations of 1997 as amended up to 13.05.2019. Notification dated 13.05.2019 notified Graduate Medical Education Regulation (Amendment), 2019 was also appended with the bulletin as Appendix-VI, reference of which has been already made herein above. List of centers for disability certificate was appended as Appendix-VII and the format of disability certificate was also appended as Appendix-XI.

25. In cases where a person is desirous of seeking admission to undergraduate medical course, in the matter of his assessment of specified disability, certifying authority and the procedure thereof is governed by special provisions contained in Graduate Medical Education (Amendment), 2019 amending Graduate Medical Education Regulations, 1997. By such amendment, vide Appendix “H-1” Guidelines regarding admission of students with specified disability under the Rights of Persons with Disability Act, 2016 with respect to admission in MBBS course have been laid down. The aforesaid Appendix “H-1" being most relevant for the purpose of the present case is extracted herein below: Appendix “H-1” Guidelines regarding admission of students with “Specified Disabilities” under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS Course. Note: 1. The “Certificate of Disability” shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 15th June 2017. 2. The extent of “specified disability” in a person shall be assessed in accordance with the “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” notified in the Gazette of India by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] on 4th January 2018. 3. The minimum degree of disability should be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. 4. The term ‘Persons with Disabilities’ (PwD) is to be used instead of the term ‘Physically Handicapped’ (PH).
S. No | Disability Type | Type of Disability | Specified Disability | Disability Range: Eligible for Medical Course, Not Eligible for PwD Quota | Eligible for Medical Course, Eligible for PwD Quota | Not Eligible for Medical Course
| 1. | Physical Disability | A. Locomotor Disability, including Specified Disabilities (a to f) | a. Leprosy cured person; b. Cerebral Palsy; c. Dwarfism; d. Muscular Dystrophy; e. Acid attack victims; f. Others such as Amputation, Poliomyelitis, etc. | Less than 40% disability | 40-80% disability Persons with more than 80% disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices, if it is being used, to see if it is brought below 80% and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily. | More than 80% |
* Attention should be paid to loss of sensations in fingers and hands, amputation, as well as involvement of eyes and corresponding recommendations be looked at.
Attention should be paid to impairment of vision, hearing, cognitive function etc. and corresponding recommendations be looked at.
* Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered eligible for medical course.
| | | B. Visual Impairment (*) | a. Blindness; b. Low vision | Less than 40% disability | - | Equal to or More than 40% Disability |
| | | C. Hearing impairment @ | a. Deaf; b. Hard of hearing | Less than 40% disability | - | Equal to or more than 40% Disability |
(*) Persons with Visual impairment/visual disability of more than 40% may be made eligible to pursue MBBS Course and may be given reservation, subject to the condition that the visual disability is brought to a level of less than the benchmark of 40% with advanced low vision aids such as telescopes/magnifier etc.
@ Persons with hearing disability of more than 40% may be made eligible to pursue MBBS Course and may be given reservation, subject to the condition that the hearing disability is brought to a level of less than the benchmark of 40% with the aid of assistive devices. In addition to this, the individual should have a speech discrimination score of more than 60%.
| | | D. Speech & language disability | Organic/neurological causes | Less than 40% Disability | - | Equal to or more than 40% Disability |
$ Persons with Speech Intelligibility Affected (SIA) shall be eligible to pursue MBBS Courses, provided Speech Intelligibility Affected (SIA)score shall not exceed 3 (three), which is 40% or below. Persons with Aphasia shall be eligible to pursue MBBS Courses, provided Aphasia Quotient (AQ) is 40% or below.
| 2. | Intellectual Disability | | a. Specific learning disabilities (Perpetual disabilities, Dyslexia, Dyscalculia, Dyspraxia & Developmental aphasia)# | Less than 40% Disability | Equal to or more than 40% disability and equal to or less than 80%. But selection will be based on the learning competency evaluated with the help of the remediation/assisted technology/aids/infrastructural changes by the Expert Panel. | More than 80% or severe nature or significant cognitive/intellectual disability. |
# currently there is no Quantification scale available to assess the severity of SpLD, therefore the cut-off of 40% is arbitrary and more evidence is needed.
| | | | b. Autism spectrum disorders | Absence or Mild Disability, Asperger syndrome (disability of upto 60% as per ISAA) where the individual is fit for MBBS course by an expert panel. | Currently not recommended due to lack of objective method to establish presence and extent of mental illness. However, the benefit of reservation/quota may be considered in future after developing better methods of disability assessment. | More than 60% disability or presence of cognitive/intellectual disability and/or if the person is unfit for pursuing MBBS course by an expert panel. |
| 3. | Mental behaviour | | Mental illness | Absence or mild Disability: less than 40% (under IDEAS) | Currently not recommended due to lack of objective method to establish presence and extent of mental illness. However, the benefit of reservation/quota may be considered in future after developing better methods of disability assessment. | Equal to or more than 40% disability or if the person is unfit to perform his/her duties. Standards may be drafted for the definition of “fitness to practice medicine”, as are used by several institutions of countries other than India. |
| 4. | Disability caused due to | a. Chronic Neurological Conditions | i. Multiple Sclerosis; ii. Parkinsonism | Less than 40% Disability | 40-80% disability | More than 80% |
| | | b. Blood Disorders | i. Haemophilia; ii. Thalassemia; iii. Sickle cell disease | Less than 40% Disability | 40-80% disability | More than 80% |
| 5. | Multiple disabilities including deaf blindness | | More than one of the above specified disabilities | Must consider all above while deciding in individual cases recommendations with respect to presence any of the above, namely, Visual, Hearing, Speech & Language disability, Intellectual Disability, and Mental Illness as a component of Multiple Disability. Combining Formula as notified by the related Gazette Notification issued by the Govt. of India. a + (b(90-a)/90) (where a= higher value of disability % and b=lower value of disability % as calculated for different disabilities) is recommended for computing the disability arising when more than one disabling condition is present in a given individual. This formula may be used in cases with multiple disabilities, and recommendations regarding admission and/or reservation made as per the specific disabilities present in a given individual. |

26. Therefore, for a person who has been issued a disability certificate by the certifying authority in the prescribed manner, following procedure prescribed under the Act of 2016 read with the Central Government Rules of 2017 read with notification of 2018 and the State Rules of 2019 and seeking admission to graduate medical course, a special provision exists insofar as the assessment of disability for the purpose of admission to medical course is concerned.

27. The information bulletin clearly provided that for the purpose of admission to undergraduate medical course, the assessment of disability shall be in accordance with the notification dated 13.05.2019 and that an advisory has been issued to candidates seeking reservation under the PwBD Quota to obtain certificate from the authority specified under the Act of 2016 and the Rules made thereunder for the purpose of their own satisfaction that they are eligible. In other words, the scheme of examination provided that admission will be subject to a candidate being found fit on the basis of the disability certificate to be issued after examination by one of the designated Assessment Boards enlisted along with the notification.

28. Vide notice dated 05.07.2023, DGHS (Government of India) invited attention of all PwD candidates of NEET (UG) 2023 notifying that those who have registered themselves under the PwD Quota in NEET (UG) 2023 and desirous to get PwD through counselling process may get the disability certificate issued from any of the designated NEET Disability Screening Centers. It was clarified that the candidates have to visit the designated disability NEET Screening Center for physical examination and quantification of their disability and obtain the PwD certificate.

29. Both the appellants herein, Anmol and AS approached designated Assessment Boards for their examination and submitted them for examination as per the scheme of examination. While appellant-Anmol was examined by Lady Hardinge Medical College and Associated Hospitals, New Delhi, appellant-AS was examined by Disability Assessment Board in Atal Bihari Vajpayee Institute of Medical Sciences and Dr. Ram Manohar Lohia Hospital, New Delhi.

30. Certificate of disability for NEET admission dated 21.07.2023 issued by Disability Board in respect of Anmol certifies and declares disability as below:
CERTIFICATE OF DISABILITY FOR NEET ADMISSIONS
(As per MCI Gazette Notification No.MCI-18(1)/2018-Med./187262 dated 5th Feb, 2019/14th May, 2019 for admission to Medical Courses in All India quota)
Certificate No : 2023-July/002004 | Certificate Date:. 21-Jul-2023
Name of the Designated Disability Certificate Centre | Lady Hardinge Medical College & Associated Hospitals, New Delhi
This to certify that Dr./Mr./Ms. | ANMOL
Age | [omitted] | Son/Daughter of Mr. | [omitted]
NEET ROLL NO. | [withheld] | Rank No. | 620955
Has the following Disability
Disability Details
S. No. | Disability Type | Type of Disability | Specified Disability | Disability %
| 1 | Physical Disability | Speech & Language Disability | Organic/Neurological Causes | 55 |
| 2 | Physical Disability | Locomotor Disability | Others | 66 |
Conclusion : Based on quantification of Disability The Candidate is not eligible to pursue medical course (as per NMC norms).
Remark : Congenital Amputation Middle Phalanx Index and middle finger right hand and disarticulation Through PIP joints middle and ring finger left hand and bilateral operated club feet with partial loss of all toes left foot and Speech disability. Total disability percentage after adding both disability with formula is eighty one percent. The Candidate is not eligible to pursue medical course as per NMC norms. There is involvement of both hands and both feet as well as speech disability.
The Disability Certification Board certifies that the candidate is Not Eligible for admission in Medical/Dental courses and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification.
If ‘Not Eligible’ the reason for the same is. Congenital Amputation Middle Phalanx Index and middle finger right hand and disarticulation through PIP joints middle and ring finger left hand and bilateral operated club feet with partial loss of all toes left foot and Speech disability. Total disability percentage after adding both disability with formula is eighty one percent. The Candidate is not eligible to pursue medical course as per NMC norms. There is involvement of both hands and both feet as well as speech disability.
Functional competency with the aid of Assistive devices in case of Locomotor/Visual/ Hearing* Impairment, if any. Not Applicable.
Sign & Name : Dr. S.K.Rasania, Director Professor Vice Principal and Chairperson, Community Medicine | Sign & Name : Dr. Sunil Kumar, Director, ENT | Sign & Name : Dr.Ritu Majumdar, Professor and HOD, Physical Medicine and Rehabilitation
Disclaimer: This Certificate is Provisional and will be verified by the allotted college authorities at the time of admission. The candidate may be subjected to diagnostic test to specify the level of disability again at the allotted college in case of any ambiguity. The certificate may be cross verified by the admitting college from the Disability Board from where the certificate has been issued. Hence, the Designated Disability Boards and the candidates are advised to preserve the records for any future reference. The Disability Certificate is valid for this academic session only.

31. Appellant-Anmol was found suffering from speech and language disability as well as locomotor disability of specified percentage. Upon examination, the Board declared that Anmol is not eligible to pursue medical course as per NMC norms. Remarks contained observations upon medical examination and according to the declaration, total disability percentage after adding both disabilities with formula was 81%. Further, he was held not eligible to pursue medical course as per the NMC norms because he had involvement of both hands and both feet as well as speech disability.

32. As far as appellant-AS is concerned, declaration of disability and eligibility in the certificate issued by the designated Assessment Board is as under:
CERTIFICATE OF DISABILITY FOR NEET ADMISSIONS
(As per MCI Gazette Notification No.MCI-18(1)/2018-Med./187262 dated 5th Feb, 2019/14th May, 2019 for admission to Medical Courses in All India quota)
Certificate No : 2023-July/001625 | Certificate Date:. 18-Jul-2023
Name of the Designated Disability Certificate Centre | Ram Manohar Lohia Institute of Medical Sciences & Dr. RML Hospital, NEW DELHI
This to certify that Dr./Mr./Ms. | AS
Age | [omitted] | Son/Daughter of Mr. | [omitted]
NEET ROLL NO. | [withheld] | Rank No. | 168404
Has the following Disability
Disability Details
S. No. | Disability Type | Type of Disability | Specified Disability | Disability %
| 1 | Physical Disability | Locomotor Disability | Others | 60 |
Conclusion : Based on quantification of Disability The Candidate is not eligible to pursue medical course (as per NMC norms).
Remark : ERBs PALSY RIGHT UPPER LIMB.
The Disability Certification Board certifies that the candidate is Not Eligible for admission in Medical/Dental courses and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification.
‘Not Eligible’ the reason for the same is : ERBs PALSY RIGHT UPPER LIMB
Sign & Name : DR. SHIPRA, ASSOCIATE PROFESSOR | Sign & Name : DR. VASU, ASSISTANT PROFESSOR, ORTHOPAEDIC DEPARTMENT | Sign & Name : DR. SUMEDH SANDANSHIV, ASSISTANT PROFESSOR, ORTHOPAEDIC DEPARTMENT
Disclaimer: This Certificate is Provisional and will be verified by the allotted college authorities at the time of admission. The candidate may be subjected to diagnostic test to specify the level of disability again at the allotted college in case of any ambiguity. The certificate may be cross verified by the admitting college from the Disability Board from where the certificate has been issued. Hence, the Designated Disability Boards and the candidates are advised to preserve the records for any future reference. The Disability Certificate is valid for this academic session only.

33. She was found having locomotor disability of specified percentage. However, the conclusion based on quantification of disability was that the AS is not eligible to pursue medical course (as per NMC course). In the remark column it has been mentioned the nature of disability as “ERB’s PALSY RIGHT UPPER LIMB”. Therefore, on this basis, the authority opined that she is not eligible to pursue medical course.

34. Before proceeding to deal with the various aspects of challenge to the correctness and validity of the aforesaid certificates issued by the respective disabilities Assessment Boards in favour of appellants, it would be profitable to refer to the observations made by Hon’ble Supreme Court in the case of Vidhi Himmat Katariya & Ors. vs State of Gujarat & Ors., delineating the scope and limitations of judicial review as below: “8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned as Appendix ‘H’ - ‘Both hands intact, with intact sensation, sufficient strength and range of motion’. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts- in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides.”

35. It is also relevant to note that though the appellants have challenged the action of the respondents in declaring them unfit for undertaking medical course, there is no allegation of mala fides levelled against individual members of the body of experts constituting the Disability Assessment Board.

36. As far as appellant-Anmol is concerned, disability certificate issued by the DAB reveals that the Board while assessing multiple disabilities i.e. speech and language disability and also the locomotor disability, declared that the candidate suffers from organic/neurological cases to the extent of 55% insofar as speech and language disability is concerned. As regards the locomotor disability, the extent was quantified as 66%. It further states that conclusion is based on quantification of disability. The remarks as to why the candidate was not found eligible to pursue the medical course (as per the NMC norms) observe that: “Remark: Congenital Amputation Middle Phalanx Index and middle finger right hand and disarticulation Through PIP joints middle and ring finger left hand and bilateral operated club feet with partial loss of all toes left foot and Speech disability. Total disability percentage after adding both disability with formula is eighty one percent. The Candidate is not eligible to pursue medical course as per NMC norms. There is involvement of both hands and both feet as well as speech disability. The Disability Certification Board certifies that the candidate is Not Eligible for admission in Medical/Dental courses and to avail 5% PwD reservation as per the NMC/MCI Gazette Notification. If ‘Not Eligible’ the reason for the same is. Congenital Amputation Middle Phalanx Index and middle finger right hand and disarticulation through PIP joints middle and ring finger left hand and bilateral operated club feet with partial loss of all toes left foot and Speech disability. Total disability percentage after adding both disability with formula is eighty one percent. The Candidate is not eligible to pursue medical course as per NMC norms. There is involvement of both hands and both feet as well as speech disability. Functional competency with the aid of Assistive devices in case of Locomotor/Visual/ Hearing* Impairment, if any. Not Applicable.” Therefore, we find that detailed observations in the form of remarks have been contained in the certificate as to why the body of experts did not find the appellant-Anmol eligible to pursue medical course.

37. Similarly, appellant-AS was also not found eligible to pursue the medical course (as per the NMC nroms). In her certificate, the remarks observes “ERBs PALSY RIGHT UPPER LIMB”. It is relevant to note here that though the percentage of locomotor disability was assessed as 60% based on quantification of disability, yet, having found that the appellant-AS suffers from “ERBs PALSY RIGHT UPPER LIMB”, she was found not eligible.

38. It is important to note here that the two Disability Assessment Boards, which assessed the disabilities of the appellants herein, consisted of medical experts (3 in number), in each case. Challenge to the certificate of disability and the assessment made by the body of experts is not made on the ground that the experts, constituting the Board, were not statutorily competent or qualified to act as experts for carrying out the assessment of disability.

39. Graduate Medical Education Regulation of 1997 framed in exercise of statutory powers under the Indian Medical Council Act, 1956, as initially framed, did not contain any provision with regard to the assessment of disability and eligibility of persons with disability nor they made any provisions with regard to benchmark disability or any provision with regard to eligibility of persons with disability, to undertake medical education course. However, in view of the statutory mandate under the Right of Persons with Disability Act, 2016 and the Rules framed thereunder, successive amendments were made in the Regulation of 1997, which have been detailed herein above. Under the amendment vide notification dated 22.01.2018 added Appendix-”G” provided for specified disability. However, vide subsequent amendment vide notification dated 04.02.2019, a new appendix, Appendix-”H” was added after Appendix-”G”, as has been noted herein above. Amendment vide notification dated 04.02.2019 not only provided for specified disability under Appendix-”G” but the Regulations now lay down the eligibility of candidate to pursue the course in medicine with specified disability and for this purpose a new Appendix-”H” was added which contained guidelines regarding admission of students with specified disability under the Act of 2016 with respect to the admission in MBBS. While laying down types of disabilities, specified disability and disability range, eligibility prescriptions were also added. Therefore, apart from the quantified percentage of disability of a particular type, certain eligibility conditions were included which provided that if a person with disability suffers from peculiar disability feature then he would not be eligible to pursue the graduate medical course. With reference to Clause (f) of Serial No. 1 of para 4 in Appendix “H”, it was stated that both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered eligible for medical course. Therefore, while assessing the nature and extent of disability, the Assessment Board was necessarily required to examine the nature and extent of disability with particular reference to the aforesaid prescriptions of eligibility and then give its opinion as to whether the candidate desirous of seeking admission to medical course is medically fit and eligible. This prescription of eligibility in addition to specification of nature and extent of disability was continued while further amending Regulations of 1997 vide amendment dated 13.05.2019. Appendix-H of the notification dated 04.02.2019 was substituted by a new set of guidelines as Appendix “H-1”. Appendix “H-1” has already been extracted herein above. Under Serial No. 1 with reference to the locomotor disability including the specified disability, Clause (f) deals with other specified disability such as Amputation, Poliomyelitis etc. The eligibility for medical course, though not eligible for PwD Quota, is limited when specific disability is less than 40%. However, when the specified disability is more than 40% but within the range of 80%, the person is eligible for medical course as also eligible for PwD quota. In case, however, specific disability is quantified is more than 80%, as in the case of appellant-Anmol, he is not eligible for medical course. It has also been provided that both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered eligible for medical course. Therefore, irrespective of the disability, its nature and extent, the aforesaid prescription essentially relates to the aspect of eligibility to pursue the medical course. At the time when the appellants were examined by the respective DABs, the aforesaid guidelines under Appendix “H-1” was in force. Therefore, the Board was empowered under the law not only to identify the nature of disability, quantification and extent of disability but also to examine the candidates with reference to eligibility aspect. The case of the two appellants were examined by the Boards, being experts, not only with reference to the nature and extent of disability but also keeping in view the statutory prescriptions dealing with the aspect of eligibility. This particular statutory prescription did not form part of the Regulations of 1997 prior to the notification dated 04.02.2019. However, after the amendments in the Regulations of 1997 vide notification dated 04.02.2019 and notification dated 13.05.2019, the designated Assessment Board was empowered to examine the candidates desirous of seeking admission to medical course not only with reference to the nature and extent of their disability but also to form an opinion on the aspect of eligibility as required under the guidelines in Appendix “H-1”. That is what has been done in the case of both the appellants. In both the cases, on the basis of two different remarks, appellants have been found ineligible to pursue the medical course.

40. Learned counsel appearing for the appellant-Anmol assailed the correctness of the certificate issued by the Assessment Board mainly on the basis that the certificate of disability did not contain any observation and medical opinion in respect of the locomotor disability in regard to “both hands intact with intact sensation, sufficient strength and range of motion”. Therefore, it is submitted that inference only from the conclusion remarks and reasons could not be drawn and that the experts must properly examine the appellants in respect of locomotor disability with regard to the aforesaid aspect of requirement of both hands intact with intact sensation, sufficient strength and range of motion. We are unable to accept this submission. The certificate of disability issued in respect of the appellant is based on the examination of the appellant-Anmol by as many as three experts. The opinion making process need not be detailed nor is the requirement of law. In compliance of the directions issued by this Court, respondent-Union of India has produced before us the papers containing examination of appellant-Anmol which contained various observations, which culminated in the issuance of certificate. The experts made several observations in those examination papers and then concluded that the appellant is not eligible to pursue the medical course. The total percentage of disability has also been found to be 81%. The x-ray report has also been attached. Reference has been made to various provisions contained in the Rights of Persons with Disability Rules, 2017 particularly Rule 2(a), 2(b), 2(c), Rules of 2017, Rules of 2018 and various formats referable to these Rules to submit that the certificate is not strictly in accordance with the prescription given in this form. In our opinion, once the opinion of the experts that the appellant-Anmol is not eligible on account of the remarks contained in certificate which itself is based on medical examination of body of experts, the decision of the respondents to hold Anmol ineligible cannot be faulted on such grounds.

41. Minute examination by experts in the field of medical science and its opinion regarding ineligibility with reference to specified conditions of eligibility contained in Schedule “H-1” of notification dated 13.05.2019, being opinion of experts, could not be interfered by this Court by sitting over the same as an appellate authority for the reasons that this Court is not expert in the field.

42. As far as the other candidate AS is concerned, it is found that AS has been declared ineligible to pursue the medical course as the Board found her suffering from a particular type of disability known as “ERBs PALSY RIGHT UPPER LIMB” which was found in the right upper limb. The appellant has not challenged this observation and the experts opinion claiming that she did not suffer from this disease at all. In fact, the certificates issued, which were in her favour, by the State authority prior to she being subjected to examination by DAB also clearly stated AS suffering from “ERBs PALSY RIGHT UPPER LIMB”. Irrespective of the quantification of disability being less than a particular limit i.e. 80% and more than 40% so as to make appellant eligible to claim reservation, the aspect of eligibility is a matter for examination by the DAB. The certificate apparently shows that on account of appellant-AS having been found suffering with disability of the nature “ERBs PALSY RIGHT UPPER LIMB”, she has not been found eligible as the essential condition of eligibility of person suffering with locomotor disability with both hands intact, with intact sensation, sufficient strength and range of motion is not fulfilled.

43. During the course of arguments, learned counsel appearing for NMC placed for perusal of this Court an authentic text book “Apley & Solomon’s System of Orthopaedics and Trauma, Tenth Edition (Edited by Ashley Blom, David Warwick, Michael R. Whitehouse)” detailing the nature of disability in those suffering from ERBs PALSY RIGHT UPPER LIMB. In the said authentic text book, in Section 1, at page 290, following is explained regarding nature of disability where a person is suffering from ERBs Palsy Right Upper Limb: “OBSTETRICAL BRACHIAL PLEXUS PALSY Obstetrical palsy is caused by excessive traction on the brachial plexus during childbirth, for example by pulling the baby’s head away from the shoulder or by exerting traction with the baby’s arm in abduction. The incidence in the United Kingdom is around 1 in 2300 live births. Babies of diabetic mothers or unrecognized large-for-dates babies are at risk. Classically three patterns of injury were described: (1) upper root injury (Erb’s palsy), typically in overweight babies with shoulder dystocia at delivery; (2) lower root injury (Klumpke’s palsy), usually after breech delivery of smaller babies; (3) total plexus injury. In practice, the injury is a spectrum of brachial plexus injury with the upper nerve roots being injured in the majority of cases. Isolated injury to the C8/T1 is very rare. Erb’s palsy is now synonymous with obstetric brachial plexus injury for parents and patient groups. Narakas classified the injury for babies delivered with a cephalic presentation: Group 1 C5/C6 Group 2 C5/C6/C7 Group 3 Entire plexus involved Group 4 Entire plexus with Horner’s sign Clinical features The diagnosis is usually obvious at birth: after a difficult delivery the baby has a floppy or flail arm. Further examination a day or two later will define the type of brachial plexus injury. Erb’s palsy is caused by injury of C5, C6 and (sometimes) C7. The abductors and external rotators of the shoulder and the supinators are paralysed. The arm is held to the side, internally rotated and pronated (Figure 11.12a). There may also be loss of finger extension. Sensation cannot be tested in a baby. Klumpke’s palsy is due to injury of C8 and T1 (Figure 11.12b). The baby lies with the arm supinated and the elbow flexed; there is loss of intrinsic muscle power in the hand. Reflexes are absent and there may be a unilateral Horner’s syndrome. With a total plexus injury the baby’s arm is flail and pale; all finger muscles are paralysed and there may also be vasomotor impairment and a unilateral Horner’s syndrome. In Narakas group 1 injuries of C5, C6 the abductors and external rotators of the shoulder and the supinators are paralysed. The arm is held to the side, internally rotated and pronated. The elbow is extended. In Narakas Group 2 the wrist and digital extensors are also paralysed, with weak or absent triceps function. The baby presents with a clenched fist. In Group 3 injuries there is flaccid paralysis. Finger flexion is usually the first movement seen to recover. In Group 4 injuries flaccid paralysis is accompanied by a Horner’s sign. Note that the sympathetic outflow in babies also encompasses C8 as well as T1, unlike that in adults. X-rays should be obtained to exclude fractures of the shoulder or clavicle (which are not uncommon and which can be mistaken for obstetrical palsy).”

44. If we look into the aforesaid description of the nature of ERBs PALSY RIGHT UPPER LIMB, this is clearly referable to the aspects of eligibility that both hands intact with intact sensation, sufficient strength and range of motion are essential to be considered in medical course. The experts in the Assessment Board examined appellant-AS and having found her suffering from “ERBs PALSY RIGHT UPPER LIMB” located in the right upper limb, she was declared ineligible. Therefore, there is clear co-relation between the nature of disability and essential eligibility condition. The original examination papers regarding examination of appellant-AS were also called. It contained certain observations made by the experts on various aspects relating to the nature and extent of disability of “ERBs PALSY RIGHT UPPER LIMB”. As a result of these observations, noted during medical examination of the appellant-AS, that the expert opined that essential condition of both hands intact with intact sensation, sufficient strength and range of motion is not fulfilled which resulted in declaration of ineligibility. The opinion has been formed by the body of experts and there is no allegation of malafide against the experts. Therefore, the argument that since the extent of locomotor disability was within the range of 40% to 80%, therefore, the appellant-AS should be declared as eligible cannot be accepted and is, therefore, rejected.

45. It is not a case where though both the appellants have been found eligible on all other aspects, for the purpose of quantifying the disability, the experts have not carried out any examination or that the certificate of disability did not give details, in which event, this Court might have directed the respondents to undertake fresh medical examination. However, once the opinion of the experts on the aspect of eligibility is found to be just and proper, it is not permissible under the law to undertake another round of exercise of scrutiny by issuing any direction to the respondents.

46. The submission that as the certificate of disability issued by the State authorities and the certificate of disability issued by the DAB under the scheme of Regulations of 1997 as amended from time to time are at variance, therefore, in all such cases fresh medical examination should be ordered, is not acceptable. The percentage of locomotor disability and other kind of disability certified by the DAB may have slight variation but as far as the aspect of eligibility is concerned, this was not required to be examined nor certified by the State authorities issuing disability certificate under the provisions of the Act of 2016 read with the Rules framed thereunder but was to be examined only by the DAB under the scheme of assessment of eligibility of persons with disability under the Regulations of 1997 as amended vide notification dated 13.05.2019 under the statutory guidelines specified in schedule Appendix “H-1”, hence, there is no question of any variance on this aspect.

47. Learned counsel appearing for the National Medical Council has sited at the bar several decisions including the decision of Hon’ble Supreme Court in the case of Vidhi Himmat Kataria (supra) and various High Courts’ judgments to convince this Court that the writ Court cannot not sit over the experts opinion as an appellate authority. Once the examination and assessment of disability and eligibility have been duly examined by the body of experts and there are no allegations of malafide, if no case of statutory violation is made out nor any case of unfair treatment is made out, the opinion of experts could not be interfered with. The submission has considerable force worth acceptance.

48. Learned counsel for the respective appellants have relied upon several decisions, some of them are interim orders.

49. In case of Purswani Ashutosh (minor) Vs Union of India & Ors. (supra), the question which arose for consideration was whether a person with benchmark disability of low vision, within the meaning of Section 2(r) read with Clause 1(B) of the Schedule of the Act of 2016, can be denied the benefit of reservation for admission to MBBS medical course. The aforesaid decision was rendered in the light of the then prevailing statutory scheme. By that time, the amendments in the Regulations of 1997 vide notification dated 04.02.2019 and 13.05.2019 had not come. It was found that the committee of the experts opined that the vision disability of the petitioner therein was within the benchmark of Disability Act, yet, the petitioner therein was not found suitable to undertake the MBBS course, as per the MCI requirements and guidelines, without disclosing the exact reason for forming the opinion that the petitioner therein was not fit for the MBBS course. It was found that the recommendation of the Committee were awaiting consideration of the Central Government. The legal position obtaining as on that day was taken note of that the Medical Education Regulation framed under Section 33 of the Medical Council Act, 1956 have statutory force and are binding on the Medical Council of India and that the opinion of experts cannot override Medical Education Regulations. Having noted that the regulations have not yet been amended by the MCI in the light of the recommendations made by the Committee of experts and the decision taken at the Secretariat level and that no amendment in 2016 Act or in the Regulations issued by the MCI have been made so far, decision was rendered in favour of the petitioner therein. Therefore, the aforesaid decision is distinguishable because now specific regulations by way of amendment vide notification dated 04.02.2019 and 13.05.2019 have been made in Graduate Medical Education Regulations, 1997, incorporating the experts report in the statutory scheme.

50. Reliance placed on the decision in the case of Vidhi Himmat Katariya (supra) is misplaced in law and facts, as already noted herein above, the principle laid down in the said decision is that when the experts in the field have opined against the petitioner, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the medical board more particularly when there are no allegations of malafide. The writ petition was dismissed rejecting the contention of the petitioner with regard to the correctness and validity of the examination.

51. In the case of Parmod Vs Union of India & Ors., correctness of refusal to grant admission, was examined in view of recommendations given by the Medical Council of India. The aforesaid decision was rendered in light of the judgment in the case of Purswani Ashutosh (minor) (supra) when statutory prescription with regard to eligibility was not contained in the MCI Regulations of 1997.

52. Reliance placed on the decision in the case of Raghav Agrawal Vs State of Rajasthan & Ors. [D.B. Civil Writ Petition No. 9483/2017] is misplaced on facts. On facts, the Court was inclined to obtain another report by subjecting the petitioner therein to fresh medical examination. It was found that the petitioner might have difficulty in carrying out fine precision work although he is able to carry out gross functions with certain limits. The Court requested the Board of experts to explain the impediment for the petitioner to undertake MBBS course. Taking into consideration the opinion of the Board, it was concluded that though the petitioner therein was not physically fit to undergo MBBS course, there are several subjects where surgical precision is not required. On such consideration, relief was granted.

53. In the case of Ms. Geetika Tanwar Vs State of Rajasthan & Ors. [D.B. Civil Writ Petition No. 15318/2017], on the basis of the report obtained, the petitioner therein was directed to be granted admission. The aforesaid decision purely turned on facts.

54. In case of Dashrath Kumar Kuldeep Vs Rajasthan University of Health Sciences & Anr. [D.B. Civil Special Appeal Writ No. 463/2017], challenge to cancellation of admission was based on the ground that opinion of medical board that the candidate did not fulfill the criteria for admission in physical parameters due to physical impairment of more than 40% in both upper and both lower limbs, it was noted that in the examination, the disablement of the candidate was found to be more than 40% in both upper and lower limbs. Taking into consideration the then existing State policy and grant of benefit of reservation and on facts it was found that the petitioner therein was not entitled to admission. On appeal being filed, it was noted that in view of the definition of Persons with Disability under Section 2(t) of the Act of 2016 as also Section 2(i) which defines Disability and further noting Section 39 of the Act, the disability of the upper limb could not be made a basis to deny benefit of reservation.

55. In the case of Manohar Lal Swami Vs The State of Rajasthan & Ors.[D.B. Civil Writ Petition No. 11241/2019], validity of Regulations on Graduate Medical Education (Amendment), 2019 with Appendix-”H” promulgated vide notification dated 04.02.2019, whereby, benefits of locomotor disability had been extended to lower limbs, was challenged as ultravires Section 36 of the Act of 2016 as also Article 14 and 21 of the Constitution of India. The validity of the amendments was upheld and challenge to the same was repelled. On facts, the case of the petitioner therein was quite different. Denying grant of benefit of reservation in admission on the basis of medical examination that the petitioner therein possess less than the benchmark disability and ineligibility to pursue MBBS course as he does not possess minimum functional abilities to perform skills required of a medical graduate such as basic life saving as well as operative intervention etc, no relief was granted.

56. In the case of State of Tamil Nadu & Ors. Vs. J. Vibin & Anr. [W.A. (MD) No. 1481/2018], challenge was made to the assessment made by the Disability Assessment Board declaring the candidate ineligible. That judgment was delivered prior to amendment vide notification dated 13.05.2019. It was found that the notification issued by the MCI would have only prospective operation and could not be given effect retrospectively. On this consideration, it was held that the candidate could not be held ineligible by applying a notification which was issued subsequent to the admission.

57. Reliance has also been placed on the decision in the case of Vinay Kumar Mali (supra) and Mukul Vairagi (supra) which turned on their own facts and are distinguishable.

58. In view of the above consideration and upshot of discussion, we are unable to interfere with the opinion rendered by the Disability Assessment Boards with regard to declaration of ineligibility of the two appellants herein. Consequently, we do not find any ground to interfere and, therefore, no relief can be granted to the two appellants. The order passed by the learned Single Judge does not call for interference.

59. Papers relating to examination of the two appellants submitted in sealed covers to this Court are returned back to the counsel for Union of India.

60. Appeals are consequently dismissed.

61. No order as to costs.

[Footnotes, printed at the page feet of the official PDF and collected here by NyayVidhan:
[1] 1. Writ Petition (Civil) No. 793/2022 Vibhushita Sharma Vs. Union of India & Ors. [Hon’ble SC]; 2. Writ Petition (Civil) No. 669/2018 Purswani Ashutosh (Minor) Vs Union of India & Ors. [Hon’ble SC]; 3. Civil Appeal No. 10353/2018 Parmod Vs. Union of India & Ors. [Hon’ble SC]; 4. D.B.C.W.P. No. 9483/2017 Raghav Agarwal Vs. The State of Raj. & Ors. [Hon’ble RHC, Jodhpur]; 5. D.B.C.W.P. No. 15318/2017 Ms. Geetika Tanwar Vs. The State of Raj. & Ors. [Hon’ble RHC, Jodhpur]; 6. D.B.C.W.P. No. 463/2017 Dashrth Kumar Kuldeep Vs. Raj. University of Health Sciences & Ors. [Hon’ble RHC, Jaipur]; 7. D.B.W.A.(MD) No. 1481/2018 The State of Tamil Nadu Vs. J.Vibin & Ors. [Hon’ble Madras HC]; 8. S.B.C.W.P. No. 11353/2023 Vijay Kumar Mali Vs. Union of India & Ors. [Hon’ble RHC, Jaipur]; 9. S.B.C.W.P. No. 10944/2023 Mukul Vairagi Vs. State of Raj. & Ors. [Hon’ble RHC, Jodhpur]; 10. [(2019) 10 SCC (20)] Vidhi Himmat Katariya & Ors. Vs State of Gujarat & Ors.
[2] 1.Dr. Pooja SN Vs Union of India & Ors. [W.P No. 16631/2023] (Karnataka High Court); 2. Anshul Sharma Vs. State of Raj. & Ors.[S.B.C.W.P. No. 4541/2022]
[3] 1. All Kerala Parents Association Hearing Impaired Vs. State of Kerela & Ors. [C.A. No. 6120/2001]; 2. Deputy Secretary, Ministry of Health Vs. Sanchita Biswas [C.A. No. 4064/2000]; 3. Dr. Raman Khanna Vs. University of Delhi & Ors. [W.P. (c) 2670/2003]; 4. D.S. Rashmi Rajan Vs. Chairman, J.E.E. & Ors. [W.P. Nos. 7877 & 7878/2004]; 5. MCI Vs D.S. Rashmi Ranjan & Ors. [SLP (C) Nos. 7952-53/2005]; 6. MCI Vs. D.S. Rashmi Ranjan & Ors. [SLP (C) Nos. 7952-53/2005]; 7. MCI Vs. D.S. Rashmi Ranjan & Ors. [SLP (C) Nos. 8447-8448/2010]; 8. Deepshika Vs. MCI & Ors. [W.P. (C) No. 4218/2014]; 9. Rutuja Dattatraya Raut Vs. State of Maharashtra & Ors. [W.P. 9556/2016]; 10. Purswani Ashutosh (Minor) Vs. Union of India & Ors. [W.P. (C) No. 669/2018]; 11. R. Sakeela Vs Secretary to Govt. & Ors. [W.P. (MD) No. 15696/2019]; 12. Manohar Lal Swami Vs. State of Rajasthan & Ors. [SLP (C) No. 21366/2019]; 13. Vidhi Himmat Katariya & Ors. Vs The State of Gujarat & Ors. [W.P. (C) No. 885/2019]; 14. Rakshit Yadav Vs. University College of Medical Science & Ors. [W.P. (C) No. 8572/2019]; 15. Purushottam Vs. Union of India & Ors. [W.P. (C) No. 7915/2020]; 16. Purushottam Vs. Union of India & Ors. [SLP (C) No. 14953/2020]; 17. S. Amina Vs. State of Kerela & Ors. [W.P. (C) No. 28457/2020]; 18. Anita Prakash Shinde Vs. Union of India & Ors. [2021 SCC Online Bom 257]; 19. Anita Prakash Shinde Vs. Union of India & Ors. [SLP (C) No. 18382/2021]; 20. Alok Ranjan Vs. NMC & Ors. [W.P. (C) No. 9933/2020]; 21. Sathe Vaibhavi Sanjay Vs. State of Gujarat & Anr. [SCA No. 2448/2022]; 22. Neha Pudil Vs. UOI & ORS. [W.P. (C) No. 2815/2022]; 23. Ayushi Mansukhbhai Movaliya Vs. State of Gujarat [R/SCA No. 17451/2022]; 24. Ishaben Rameshbhai Patel Vs. State of Gujarat [R/LPA No. 1209/2022]; 25. Ishaben Rameshbhai Patel Vs. The State of Gujarat & Anr. [SLP (C) No. 22692/2022]]

(PRAVEER BHATNAGAR),J
(MANINDRA MOHAN SHRIVASTAVA),ACTING CJ