Mohammed Afsal K.V vs State Of Kerala

P.V.Kunhikrishnan, J

The above writ petition is filed with following prayers:

“i) To issue a writ of mandamus directing the respondent Board to conduct a re-examination of the disability of the petitioner and issue a disability certificate enabling him to be admitted under NEET-KEAM 2023 pursuant to Ext. P1 prospectus;

ii) To declare that the petitioner is entitled to 5% reservation as a person with disability for admission to MBBS Course under NEET KEAM 2023 pursuant to Ext.P1 prospectus;

iii) To issue a writ of mandamus direction to the respondents 1 to 4 to allow the petitioner to participate in the allotment process for admission to M.B.B.S/B.D.S/B.H.M.S courses etc. under NEET KEAM 2023.

iv) To issue a writ of mandamus directing the respondents to grant admission to the petitioner to the Courses under NEET KEAM 2023 according to the PH rank obtained by the petitioner, pursuant to Ext. P1 prospectus;

v) To issue such other orders, directions or writs as may be prayed for under the facts and circumstances of the case.

vi) To dispense with the filing of translation of vernacular document.” (sic)

The petitioner is an aspirant for the NEET KEAM (Kerala Engineering Agricultural and Medical Entrance) 2023. According to him, he is a person with 40% locomotor disability. The 5th respondent issued Ext.P1 Prospectus for Admission to Professional Degree Courses 2023. In clause 5.3 of Ext.P1 prospectus it is prescribed that 5% of the seats available to the State are reserved for disabled candidates for all courses in Government/Aided/Government Co-sharing Colleges as stipulated in Section 32 Chapter VI of the Persons with Disabilities Act, 2016 (PwDAct). According to the petitioner, he satisfies this criteria being a person with benchmark disability as evident by Ext.P1. The petitioner's NEET score was 264 and his NEET percentile was 74.83. His NEET Rank was 511811 and the Kerala State Medical rank was 27577. According to the petitioner, as per Ext. P4 result, he qualifies for admission to the MBBS, BDS, BHMS, BUMS Courses etc. It is the definite case of the petitioner that he is confident of getting admission for the MBBS Course considering that he has obtained a very high rank under the PwD quota. Subsequently, the petitioner was called to appear before the Medical Board as contemplated in Ext.P1 prospectus to assess the disability. Accordingly on 14.06.2023, the petitioner appeared before the Medical Board at Government Medical College Hospital, Thiruvananthapuram. However, the petitioner was informed by the Medical Officer that the petitioner will not be giving the approval of the Board since his left hand cannot be used for the purposes of surgery. It is submitted that the petitioner had informed the Medical Officer by relying on the relevant pages of the prospectus and by relying on the comprehensive report regarding the guidelines for admission of persons with specified disabilities issued by the Medical Council of India that there is no blanket ban on consideration of candidates having locomotor disability in relation to upper limbs. But, it is submitted that the Medical Board wrote a report to the effect that the petitioner has not passed the medical test. In such circumstances, this writ petition is filed.

Heard the counsel for the petitioner and the Government Pleader.

When this writ petition came up for consideration on 03.08.2023, this Court passed the following order:

“This Court perused Annexure XXIV(i) of Ext.P1 Prospectus. What is stated in it is extracted hereunder:

“xxx Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course.”

The learned Government Pleader made available the report of the experts. A bare perusal of the same would not show that the Medical Board considered the specific point mentioned in Annexure XXIV(i) of Ext.P1 Prospectus. I am of the considered opinion that the experts in the State Level Medical Board should once again examine the petitioner and submit a report before this Court.

The petitioner will appear before the State Level Medical Board on 04.08.2023 at 10.00AM.

The Government Pleader will communicate the same to the Medical Board. Post on 07.08.2023.

Issue a copy of this order to the Government Pleader and the counsel appearing for the petitioner today itself.”

Based on the above direction, the petitioner appeared before the Medical Board once again. But, in the second examination also, the expert committee has categorically stated that as per the National Medical Commission Regulation, both hands should be intact with intact sensation, sufficient strength and range of motion. These are essential to get eligible for medical courses. It is also submitted by the Board that the candidate must be able to perform various therapeutic and diagnostic procedures. According to the Medical Board, it was found that the petitioner’s hand is not intact with intact sensation, sufficient strength and range of motion and hence, he will be unable to perform the procedures mentioned above. Hence, the Medical Board on second time also submitted that the petitioner is not suitable for MBBS and BDS Courses.

In the light of the above findings of the Medical Board, which was constituted as per the directions of this Court, this Court is not in a position to set aside that findings and declare that the petitioner is eligible for MBBS and BDS courses. This Court has no expertise to decide the validity of the report of the Medical Board. Moreover, this Court cannot sit in appeal against an order passed by the Medical Board. Therefore, I am not in a position to accept the contentions of the petitioner.

The counsel for the petitioner relied on paragraph 14 of Ext.P11 judgment. It will be better to extract the same here:

“14. Reverting to the facts again, the petitioner is a person who can climb stairs with railing, though she has only minimum ability to run or jump and she has difficulty in moving with uneven surfaces. She is also a person who is able to handle most objects with somewhat reduced quality and/or speed of achievement. Denying admission to such a person in medical courses would be per se arbitrary. On a specific query from the court as to the basis for insisting that the hands of the candidates shall be intact with intact sensations, sufficient strength and range of motion, the answer given by the Standing Counsel for the third respondent was that the same is necessary for a person to perform the duties of a doctor. True, the doctors need to physically examine the patients, but all candidates pursuing medical courses are not becoming practising doctors. There are several other avenues also for candidates who are pursuing medical courses such as teaching, research etc. other than practising in surgical and clinical faculties which persons who do not have even the upper limbs are successfully doing. That apart, it cannot be said that a person who is not able to physically examine a patient cannot be a doctor, for having regard to the technological advancements achieved in the field of medicine especially during the last couple of decades, there would be umpteen replacements for physical examination in the years to come.”

This Court passed such an order in the peculiar facts and circumstances of that case. The same cannot be accepted in all cases as a binding precedent. Each case has to be decided based on the facts in that case. Moreover, it is informed that, the judgment is challenged and the matter is pending before the apex court. In this case, there are two reports from the Medical Board, in which it is declared that the petitioner is not eligible for MBBS and BDS Courses because of his peculiar nature of disability. In such circumstances, I am not in a position to accept the contentions of the petitioner that based on Ext.P11 judgment, the petitioner’s case is to be allowed. No other contentions are raised by the petitioner.

Therefore, this writ petition fails and hence, dismissed.