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Judgment
Kh. Nobin Singh, J
[1] Heard Ms. Th. Babita, learned Advocate appearing for the petitioner; Smt. Momota Oinam, learned Additional Advocate General for the State respondents; Shri B.R. Sharma, learned counsel for the Medical Council of India and Shri W. Darakishwor, learned Senior Penal Counsel for the Union of India.
[2] By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to consider his case for admission to MBBS course in terms of the Regulations on Graduate Medical Education, 1997 and the provisions of the Rights of Persons with Disabilities Act, 2016. The prayer in the writ petition was amended by way of an additional affidavit filed pursuant to the order dated 14-09-2018 of this court to the effect that the respondents be directed to give admission in the session, 2019-20 by keeping one seat reserved in his favour.
[3.1] Facts and circumstances as narrated in the writ petition, are that the petitioner is a physically handicapped person with Locomotor disability who passed 12th standard in the year 2016 with 73.20 percent.
[3.2] On 13.12.2006, the United Nations General Assembly adopted a convention on the Rights of Persons with Disabilities with certain principles being laid down therein. India being a signatory thereto, ratified the United Nations' convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto, made the Act called the
"Rights of Persons with Disabilities Act, 2016" (hereinafter referred to as "the Act, 2016") which came into force with effect from 28.12.2016. Section 2(r) of the Act, 2016 defines the expression "person with benchmark disability" to mean a person with not less than 40(forty) percent of a specified disability where the specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. Section 2(zc) of the Act, 2016 has defined "specified disability" as disabilities as specified in the Schedule of the Act, 2016, the Clause 1A thereof set forth Locomotor disability as a specified disability.
[3.3] In exercise of powers conferred by the Section 33 of the Indian Medical Council Act, 1956 (hereinafter referred to as "the IMC Act, 1956"), the Medical Council of India (hereinafter referred to as "the MCI") framed a regulation called "Regulations on Graduate Medical Education, 1997" (hereinafter referred to as "the Regulations, 1997") for matters relating to Medical Education in India, which came to be amended vide Notification dated 22.01.2018 published in the Gazette of India on 23.01.2018 incorporating therein the provisions of the Act, 2016. The Clause 5(5)(I) of the Regulations, 1997 provides for holding a single entrance examination called "National Eligibility-Cum- Entrance Test" (hereinafter referred to as "the NEET") by a designated authority for admission to MBBS courses. In terms of Clause 5(5)(VII) of the Regulations, 1997, the Central Board of Secondary Education, New Delhi (hereinafter referred to as "the CBSE") has been indentified/ designated to conduct the NEET for admission to the under graduate medical course in India in Medical and Dental College run with the approval of the MCI/ DCI. Accordingly, the NEET Unit, New Delhi of the CBSE published an information bulletin for the NEET (UG)-2018 to be held on 06.05.2018 for admission to MBBS/ BDS Courses.
[3.4] The counseling for the NEET qualified candidates is conducted every year in all the States of India and the seats are allotted on the basis of the NEET reservation which is divided into three-(a) All India quota; (b) State quota and (c) Management quota. 15% of the total seats available are filled up through All India quota while the remaining 85% of the total seats are filled through State quota. As per the Regulations, 1997, the CBSE conducted the NEET- 2018 on 6th May, 2018 for admission to the undergraduate Medical/ BDS courses in India in Medical/ Dental Colleges run with the approval of MCI and the DCI for the session, 2018-2019.
[3.5] After the result of the NEET-2018 being declared, on 7th June, 2018 the Director of Health Services, Manipur commenced the process of Manipur MBBS, 2018 by releasing the applications. The Petitioner who suffers from a specified disability, say, Locomotor disability with right upper limb, submitted his application on 20-06-2018 on the strength of the result of the NEET. First round of the counseling was fixed on 5th July, 2018; Second round thereof on 25th July, 2018 and Mop up round of the counseling was held on 6th August, 2018. When the petitioner was not called for the counseling, he enquired about it and the officials of the Directorate of Health Services, Manipur informed him that the cases of only those physically handicapped candidates with locomotor disorder/ disability of lower limb between 50% to 70% in connection with the reservation of 3% of the total seats for MBBS/ BDS courses allocated for the year, 2018 for the State of Manipur, were considered by it. The petitioner's case was not considered at all as he did not fall under the said category. From a copy of the Notification dated 12.06.2018 which was handed over to him, he came to know that the admission of physically handicapped candidates to MBBS courses for the session, 2018-19 for the State of Manipur, was not done in terms of the Regulations, 1997, as amended, which came into force with effect from 23-01-2018. Being aggrieved by the actions of the State Government, the instant writ petition has been filed by the petitioner on inter-alia grounds that as per the amendment brought under the Notification dated 22.01.2015 of the MCI, 5% seats of the annual sanctioned intake capacity are earmarked for the candidates with benchmarked disabilities in the Act, 2016 and for this purpose, the specified disabilities contained in the Schedule to the Act, 2016 have been incorporated as Appendix "G"; that the case of the petitioner was required to be considered in terms of said proviso and the consideration of the case of the petitioner in terms of the Manipur MBBS / BDS Entrance Examination (Selection of Candidates for Nomination) Rues, 2004 was totally illegal and that the rights under provisions of the Act, 2016 have been violated by it.
[4] In the affidavit-in-opposition filed on behalf of the respondent Nos. 3 & 4, it has been stated that the first part of Chapter 3 para of theInformation Bulletin prescribes the eligibility criteria for the candidates appearing in the NEET for the Session 2018-19 and in particular, the para 4(b) prescribes the method of admission in State Medical Colleges/ Universities/ Institutions/ private Medical Colleges for the seats other than 15% all India quota wherein it is stated as under:
"(i) Admission under State Quota Seats shall be subject to reservation policy and eligibility criteria prevailing in the State/ Union Territory as notified by the respective State/ Union Territory from time to time.
(ii) The reservation of the seats in medical colleges for respective categories shall be as per application laws prevailing in State/ Union Territory concerned.
(iii) Admission to MBBS/ BDS Course in Private Medical College shall be subject to policies of the Government of India/ State/ Union Territory."
It has further been stated that the prevailing rules, as stated hereinabove, means the Manipur MBBS / BDS Entrance Examination (Selection of Candidates for Nomination) Rues, 2004 (hereinafter referred to as "the Manipur BBS Rules, 2004") as amended from time to time and since the State Government has all along been following its reservation policy, there is no violation of any of the provisions of the Rights of Persons with Disabilities Act, 2016. The averments made in the writ petition are contradictory. In terms of Rule 19(iv) of the Manipur MBBS Rules, 2004, the petitioner who is suffering from Locomotor disability with right upper limb, is not eligible and not permissible to pursue MBBS/ BDS course and only the persons with locomotor disorder/ disability of lower limb between 50% to 70% are eligible who would be placed in the appropriate categories vide Notification dated 31-05-2005 as amended vide Notification dated 19-05-2007, for which the Director of Health Services, Manipur had issued a Notification dated 12-06-2018 and that too, in respect of the NEET to be held on 18-06-2018. In spite of the aforesaid Notification, the petitioner did not report to the State Medical Board, as a result of which his percentage of locomotor disorder/ disability could not be determined by the State Medical Board. The whole process for nomination of candidates for MBBS and BDS courses had already been completed as per the guidelines of the MCI and the admission as well as the academic session had commenced thereafter.
[5] The short question that arises for consideration is as to whether the petitioner can be denied admission to MBBS/ BDS courses under the category of disabled persons in terms of the Manipur MBBS Rules, 2004 which remain un-amended in tune with the Regulations, 1997 as amended in the year, 2018 vide Notification dated 22-01-2018 incorporating therein the provisions of the Act, 2016.
[6] The answer to the said question is in the negative for the reason that the Act, 2016 was enacted by the parliament wherein the expression
"person with benchmark disability" has been defined as a person with less than forty per cent of a specified disability where the specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. The expression "specified disability"
has been defined therein to mean the disabilities as specified in the Schedule thereto, a portion of which, as is relevant for the present case, is as under:
"1. Physical Disability:
A) Locomotor disability (a person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including-
(d) "muscular dystrophy" means a group of hereditary genetic muscle disease that weakens the muscles that move the human body and person with multiple dystrophy have incorrect missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterized by progressive skeletal muscle weakness, defects in muscle proteins and the death of muscle cells and tissue."
Section 32 of the Act, 2016 provides that all Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than 5(five) percent seats for persons with bench mark disabilities and that the persons with bench mark disabilities shall be given an upper age of 5(five) years for admission in institutions of higher education.
[7] In exercise of the power conferred by Section 33 of the IMC Act, 1956, the MCI framed the Regulations, 1997 as amended vide Notification dated 22-01-2018 which incorporate the provisions of the Act, 2016. In terms of the Notification dated 22.01.2018, sub-clause (3) was introduced in Clause 4 of the said Regulations, 1997 which is reproduced herein below:-
"(3) In respect of candidates with bench march disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum marks in qualifying examination in Physics, Chemistry and Biology ( or Botany and Zoology)/ Biotechnology taken together in qualifying examination shall be 45% instead of 50% for general category candidates and 40% for SC/ST/OBC candidates.
5% seats of the annual sanctioned intake capacity shall be filled up by candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons Act, 2016, based on the merit list of 'National Eligibilty-Cum-Entrance Test'. For the purpose the specified Disability contained in the Schedule to the Rights of Persons with Disabilities Act, 2016 is annexed in Appendix "G".
Provided further that this entire exercise shall be completed by each medical college/ institution as per the statutory time schedule for admissions and in no case any admission will be made in the MBBS Course after 31st of August."
In Clause 4 and 5 of the Regulations, 1997, the provisions of the Act, 2016 with regard to specified disability as set out in clause (zc) of Section 2 have been incorporated as Appendix "G". The Clause 5A(2) and A(3) of the Regulations, 1997 have provided the designated Authorities of Counseling as under:-
"5A(2) The designated Authority for counseling for the 15% All India Quota seats of the contributing States and all MBBS seats of Medical Educational Institutions of the Central Government. University established by an Act of Parliament and the Deemed Universities shall be the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India.
5A(3) The counseling for admission to MBBS course in a State/ Union Territory including Medical Educational Institutions established by the State Government University established by an Act of State/ Union Territory Legislature. Trust Society, Minority Institutions, Municipal Bodies or a Company shall be conducted by the State/ Union Territory Government."
The Clause 5(5)(I) of the Regulations, 1997 provides for holding a single NEET for which the CBSE was indentified/ designated to conduct it for admission to the under graduate medical course in India in Medical and Dental College run with the approval of the MCI/ DCI. Accordingly, the NEET Unit, New Delhi of the CBSE published an information bulletin for the NEET (UG)-2018 to be held on 06.05.2018 for admission to MBBS/ BDS Courses. The bulletin prescribed at Chapter 3 the Eligibility and Qualifications of NEET which is reproduced herein below:-
(a) He/ She has completed age of 17 years at the time of admission or will complete the age on or before 31st December of the year of his/her admission to the 1st year MBBS/ BDS Course.
(b) The upper age limit for NEET (UG) is 25 years as on the date of examination with relaxation of 5 years for the candidates belonging to SC/ST/OBC category and persons entitled for reservation under the Rights of Persons with Disabilities Act, 2016.
The Age criteria for appearing in NEET(UG)-2018 is as follows:
For candidates of Unreserved Category(UR)
Born on or before 07.05.1993 and 01.01.2002
For candidates of SC/ST/ OBC/PH Category
Born on between 07.05.1988 and 01.01.2002
(c) Indian National, Non Resident Indians (NRIs), Oversees Citizen of India (OCIs), persons with Indian Origin (PIOs) & Foreign Nationals are eligible to appear in NEET (UG)-2018.
The Chapter 3 and 4, 4(a) and 4(b) provide for admission and reservation which is reproduced herein below:-
"4. ADMISSION AND RESERVATION"
An All India Merit List of the qualified candidates shall be prepared on the basis of the marks obtained in the National Eligibility cum Entrance Test (UG) and candidates shall be admitted to MBBS/ BDS courses from the said list only by following the already existing reservation policy. CBSE will provide All India Rank. Admitting Authorities will invite applications for counseling and merit list shall be drawn based on All India Rank by Admitting Authorities. Admission to MBBS/ BDS Courses within the respective categories shall be based solely on marks obtained in the National Eligibility cum Entrance Test. The admitting/ counseling authorities will draw merit list of the candidate in the respective categories declared by the candidates at the time of applying for admission/counseling.
(a) RESERVATION OF SEATS IN GOVERNMENT MEDICAL COLLEGE UNDER 15% ALL INDIA QUOTA
(i) 15% seats are reserved for SC candidates.
(ii) 7.5% seats are reserved for ST candidates
(iii) 27% seats as per Central Act are reserved for non-creamy layer OBC candidates only in Central Educational Institutions, Reservation would be applicable to the castes mentioned in the Central list of OBC. Thus the candidates falling in this list may mention OBC-NCL in the Category Column in application form. Candidates from creamy layer and those who do not come under Central List of OBC are advised to mention their category as Unreserved(UR).
(iv) Differently able candidates as per MCI guidelines are: Persons having Bench Mark disabilities and entitled for reservation under the Rights of Persons with Disabilities Act, 2016, 5% Seats of the annual sanctioned intake capacity shall be filled up by candidates with Bench Marked Disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016 base on merit list of National Eligibility cum Entrance Test". For the purpose the specified disability contained in the schedule to the Rights of Persons with Disabilities Act, 2016 is available at Appendix-XIV. If the seats reserved for the person with disabilities in a particular category remain unfilled on account of unavailability of candidates the seats should be included in the Annual Sanctioned Seats for the respective category. Detailed information in this regard is available on the website of Medical Counseling Committee-www.mcc.nic.in and on website of the Ministry of Health and Family Welfare-www.mohfw.nic.in.
Candidates who considered themselves eligible for this category are advised to ensure their eligibility by getting themselves examined at any Government Medical College/District Hospital/ Government Hospital. However, candidates may kindly note that in case of selection under PH category they will be required to produce Disability Certificate from one of the disability assessment boards, constituted at the four metro cities, mentioned below before their schedule date of counseling.
Vardhman Mahavir Medical College and Safdarjung Hospital Ansari Nagar, Ring Road, New Delhi-110029 (Tel.No./011-26190763 & 26163072).
All India Institute of Physical Medicine and Rehabilitation Hazi Ali Park K. Khadya Marg, Mahalaxmi Mumbai, 400034(Tel. no.022-23544341)
Institute of Post Graduate Medical Education & Research 244 Archarya JC Bose Marg, Kolkata-20 (Tel.No.033-22235181) Madras Medical College Park Town Chennai 600003 (Tel.No.044-25305301)
(v) Reservation will be made as per 2200 point reservation roster. The mode of implementation of reservation will be available on DGHS website-www.mohfw.nic.in.
(b) ADMISSION IN STATE MEDICAL COLLEGE/ UNIVERSITIES/ INSTITUTIONS/PRIVATE MEDICAL COLLEGE FOR SEATS OTHER THAN 15% ALL INDIA QUOTA.
(i) Admission under State Quota Seats shall be subject to reservation policy and eligibility criteria prevailing in the State/ Union Territory as notified by the respective State/ Union Territory from time to time.
(ii) The reservation of the seats in medical colleges for respective categories shall be as per application laws prevailing in State/ Union Territory concerned.
(iii) Admission to MBBS/ BDS Course in Private Medical College shall be subject to policies of the Government of India/ State/ Union Territory".
[8] The stand of the State Government as indicated in the affidavit is that in the terms of bulletin of information issued by the CBSE, New Delhi, the Manipur MBBS Rules, 2004 were followed wherein it is provided that the persons with locomotor disorder/ disability of lower limb between 50% to 70% are eligible for admission to MBBS/ BDS courses against the 3% reserved for them. From this stand of the State Government, it is absolutely clear that while conducting the process for selection/ nomination of candidates for admission to MBBS/ BDS courses for the session, 2018-19, the provisions of the Act, 2016 and the Regulations, 1997 as amended, have not been followed by it. It may be noted that the Manipur MBBS, Rules, 2004 are not statutory rules enacted by the State Legislature and moreover, the State Government is bound by the provisions of the Act, 2016 and the Regulations, 1997 as amended from time to time. In other words, the Act, 2016 being a central Act enacted by the parliament, it extends to the whole of India and therefore, the State Government is duty bound to implement its provisions. Similar is the case with the Medical Council Act, 1956 enacted by the Parliament and the Regulations, 1997, as amended from time to time, framed by the MCI under the provisions of Section 33 are binding on all the States in the country. All that the State Government ought to have done or has to do, is to amend its rules, suitably and correspondingly, in tune with the provisions of the Act, 2016 and the Regulations, 1997. The State Government appears to have apparently failed to do that. The State Government cannot take the advantage of its own mistake and the failure on its part to amend its rules, cannot deny the petitioner of his right to be considered for admission to MBBS/ BDS courses. If the stand of the State Government is accepted and the State Government is permitted to do the process of selection/ nomination of candidates for admission to MBBS/ BDS courses following its own rules, completely ignoring and violating the regulations of the MCI, which are not amended and up-to-date, it will lead to chaos and confusion in the mind of the general public resulting in the denial of admission to some candidates. This has exactly happened in the present case. In this regard, it may be noted that the law has been settled by the Hon'ble Supreme Court on 24-08-2018 in Purswani Ashutosh (Minor) through Dr. Kamlesh Virumal Purswani Vs. Union of India & ors., W.P. (C) No. 669 of 2018 wherein the Hon'ble Supreme Court held:
"The Medical Education Regulations framed under Section 33 of the Medical Council Act, 1956 have statutory force and are binding on the MCI. The Committee having opined that the petitioner suffers from a benchmark disability, its view with regard to the suitability of the petitioner for the MBBS course cannot override the Medical Education Regulations.
The 2016 Act, in particular section 32 thereof, read with the Medical Education Regulation clearly provides for reservation of seats in the MBBS Course for persons like the petitioner with specified benchmark disability of low vision.
Mr. Vikas Singh, learned senior Advocate appearing on behalf of the MCI, strenuously contended that Section 32 of the 2016 Act would not apply to admission to a medical college for the MBBS course. It is, however, not disputed that the Medical Education Regulations are valid, subsisting, in force and biding on the MCI. The validity of the said regulations has not been questioned.
The contention of Mr. Singh that Section 32 is not attracted since it only provides for reservation to higher educational institutions and not to technical institutions imparting technical education, appears to be fallacious since higher educational institution is a generic term which would include institutions imparting all kinds of higher education, including technical education, whereas technical institution is a specific terms for those institutions which only impart technical education.
Be that as it may, a mentioned hereinabove, it is not necessary for this Court to adjudicate the question of whether Section 32 of the 2016 Act is attracted or not, in view of the admission that the Medical Education Regulations which incorporate the provisions of the 2016 Act in relation to reservation to higher educational institutions, have statutory force and are binding on the MCI. The regulations have not yet been amended by the MCI in the light of the recommendations made by its Committee and the decision taken at the Secretariat level. No amendment in the 2016 Act or in the regulations framed by the MCI have been made so far.
For the reasons discussed above, this Court holds that the petitioner cannot be denied admission to the MBBS course if he qualifies as per his merit in the category of Persons with Disability. In the event, the petitioner is found to be entitled to admission, he shall be given admission in the current academic year 2018-19."
The issue involved herein is covered by the said decision of the Hon'ble Supreme Court for the reason that the Hon'ble Supreme Court has held that the Act, 2016 and in particular, Section 33 thereof, read with the Regulations, 1997, clearly provide for reservation of seats in the MBBS course for the persons like the petitioner therein with specified benchmark disability of low vision. The only difference between the present case and that of Purswani Ashutosh is only in respect of the nature of the disorder/ disability. So far as the present case is concerned, the petitioner is suffering from Locomotor disability within the meaning of specified disability as enumerated in the Schedule.
[9] Having decided the issue involved herein in terms of the decision rendered by the Hon'ble Supreme Court as stated hereinabove, the next question is as to what relief be granted to the petitioner in the facts and circumstances of the case. It has been submitted by Ms. Th. Babita, the learned counsel appearing for the petitioner that since the petitioner was denied admission to MBBS/ BDS course for the session, 2018-19 for no fault of his, the State Government be directed to keep one seat reserved out of the total seats allocated for the session, 2019-20 to accommodate the petitioner. In order to support of her contention, she has relied upon the decision rendered on 09-10-2018 by the Hon'ble Supreme Court in Parmod & ors. Vs. Union of India, CA No. 10353 of 2018 wherein the appellants were illegally deprived admission in MBBS course, the Hon'ble Supreme Court directed that the appellants be admitted in the next year, in MBBS course by reducing the seats for the next academic session. The relevant portion of the decision is reproduced hereinbelow:
"In the aforesaid facts and circumstances of the case, though appellants were entitled for admission in the MBBS course, but now as all the seats have been filled, the appellants have been illegally deprived of the admission. As such, we direct that the appellants be admitted in the next year, in MBBS course and in a government medical college as the seats of handicapped have been handed over to the general category, the seats of that cate4gory shall be reduced for the next academic session 2019-2020.
Accordingly, the appeals are allowed. The impugned orders passed by the High Court is set aside. Apprehension is raised that the eligibility criteria may be changed. The apprehension is baseless as any change subsequently made is not going to affect the right of the appellants to obtain admission. The order is final, conclusive and binding."
The facts of the said case are identical with that of the present case and in the present case also, the petitioner was denied admission in MBBS course illegally for the reason that the provisions of the Act, 2016 and the Regulations, 1997 have been completely violated by the State Government while conducting the process of selection/ nomination. Had the provisions of the Act, 2016 and the Regulations, 1997 been followed by the State Government, the case of the petitioner could have been considered for admission to MBBS/ BDS courses for the session, 2018-19. The conduct of selection/ nomination of candidates for admission to MBBS/ BDS course by the State Government in terms of its old rules which are absolutely contrary to that of the Regulations, 1997, as amended, is highly unreasonable and unfair. It is the right time for the State Government to look into the matter and take corrective measures so as to obviate such problems in future.
[10] In view of the above and for the reasons stated hereinabove, the writ petition is allowed with the following directions:
(a) The State Government shall keep one MBBS seat, out of the total MBBS seats allocated for the academic session, 2019-20, unfilled;
(b) The State Government shall constitute a committee of medical experts within 15 days from the date of receipt of a copy of this judgment and order to examine the petitioner to find out as to whether the disability suffered by him is within the benchmark disability as defined in Section 2(r) and 2(zc) of the Act, 2016 and submit a report thereof to the State Government within 15 days thereafter;
(c) In the event of the petitioner's disability being found by the committee to be within the benchmark disability as defined in Section 2(r) and 2(zc) of the Act, 2016, the petitioner shall be admitted in MBBS course against the seat being kept unfilled as per direction (a) above;
(d) In the event of the petitioner's disability being found by the committee to be not within the benchmark disability as defined in Section 2(r) and 2(zc) of the Act, 2016, the said MBBS seat being kept unfilled, may be given to other candidates in accordance with law;
(e) Since the process of admission is to be completed within the time as prescribed and directed by the Hon'ble Supreme Court which is incorporated in the instructions of the MCI, the directions (a) to
(c) above shall be strictly complied with by the State Government and the committee to be constituted by it.
There shall be no order as to costs.