DR NITTIN CHOUDHARY vs UNION OF INDIA & ORS.
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9363/2024 & C.M.Nos.38491-38492/2024
DR NITTIN CHOUDHARY …..Petitioner
Through: Mr.Gautam Narayan with Mr.Ankit
Roy and Ms.Asmita, Advocates.
versus
UNION OF INDIA & ORS. …..Respondents
Through: Ms.Monika Arora, CGSC with
Ms.Geetanjali Tyagi and
Mr.Subhrodeep Saha, Advocates for
R-1/UOI.
Mr.T.Singhdev with Mr.Abhijit
Chakravarty, Mr.Tanishq Srivastava,
Mr.Anum Hussain, Mr.Sourabh
Kumar and Mr.Bhanu Gulati,
Advocates for R-3/NMC.
Mr. Kirtiman Singh, Advocate with
Mr. Waize Ali Noor, Mr. Varun
Rajawat, Mr. Ranjeev Khatana and
Mr. Varun P. Singh, Advocates for
respondent No.4.
% Date of Decision: 11th July, 2024
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
1. Present petition has been filed challenging Sr. No.1. D. of Appendix H1 titled as Guidelines regarding admission of students with Specified
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Disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to admission in MBBS Course contained in Regulations on Graduate Medical Education, 1997 (Impugned Regulation) which provide that persons with equal to or more than 40% speech and language disability are not eligible for admission in medical course.
2.
Learned counsel for the Petitioner states that the Petitioner is a graduate in Bachelor of Dental Surgery and was a candidate in the National Eligibility cum Entrance Test Master of Dental Surgery, 2024 [NEET MDS, 2024] held by Respondent No. 4 (National Board of Examinations in Medical Science) under the Persons with Disabilities Category. He states that the Petitioner achieved an All-India Rank of 6878 and Rank 1 in the Person with Disability (PwD) category.
3.
He states that the Petitioner by birth has been suffering from speech and language impairment which is a Specified Disability under the Schedule contained in the Rights of Persons with Disabilities Act, 2016 [RPwD Act] and as such the Petitioner wholly falls within the definition of Persons with Benchmark Disability and Persons with Disability under Section 2 (r) & 2 (s) of the RPwD Act.
4.
He states that after completing his internship and undergraduate degree in the General Category, the Petitioner participated and was selected as a Junior Resident [Non-Academic] in AIIMS, New Delhi not once but three times in the PwD category. He states that prior to his appointment as Junior Resident [Non-Academic], a 7-member committee of AIIMS, New Delhi on 10th March, 2022 was pleased to assess the Petitioner and certify that the Petitioner was suffering from 46% speech and language disability and was fully fit to perform functions in the Centre for Dental Education and
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Research, AIIMS, New Delhi as Junior Resident [Non-Academic].
5.
He states that pursuant to the declaration of the result of NEET-MDS 2024, the Petitioner went to the designated disability center i.e. AIIMS, Nagpur whereby AIIMS, Nagpur on assessing the Petitioner, certified that the Petitioner is suffering from 46% speech and language disability. However, it further certified that the Petitioner was ineligible to pursue further Dental education which has rendered the Petitioner wholly ineligible to participate in the NEET-MDS 2024 counseling and has jeopardized the Petitioners future.
6.
He submits that the Impugned Regulation dated 13th May, 2019 is in derogation to Section 32 of the RPwD Act which provides for not less than 5% reservation to benchmark disability in higher educational institutions and admittedly speech and language disability is a specified disability under the Schedule contained RPwD Act. He further states that there is no rational nexus which the Impugned Regulation seeks to achieve by not providing the statutory reservation for speech and language disability.
7.
Issue notice.
8.
Ms.Monika Arora, CGSC accepts notice on behalf of Union of India (UOI) and Mr.T.Singhdev, Advocate accepts notice on behalf of National Medical Commission (NMC). They state that Dental Council of India (DCI) is a necessary and proper party. They further state that by way of present writ petition, an incorrect Regulation has been challenged. They also draw the attention of this Court to the interim order dated 01st August, 2023 passed in LPA No.571/2023 which is reproduced herein below:
1. The present intra-court appeal impugns interim order dated 24th July, 2023 whereby learned Single Judge has declined to grant any interim relief to the Appellant in a writ petition [W.P.(C) 9618/2023] filed by him, impugning the Respondents decision declaring him ineligible to pursue postgraduate medical
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course.
2.
Issue notice. Mr. T. Singhdev and Mr. Farman Ali, learned counsel, accept notice on behalf of Respondent No. 1 and Respondents No. 2 and 3, respectively.
3.
The Appellant is a qualified MBBS doctor, who has been assessed with 72% locomotor disability due to right brachial plexus injury. He is currently working as a Medical Officer in Rajasthan and was previously engaged with Respondent No. 2 Dr. Ram Manohar Lohia Hospital, as an ad-hoc doctor. Appellant asserts that he has performed all medical duties diligently, and without any complaints from supervisors or patients.
4.
Desirous to pursue a postgraduate medical course, Appellant appeared for the National Eligibility Entrance Test (Postgraduate), 2023 [NEETPG] under the General-PwD category and secured 260 marks in the said examination. Thereafter, Appellant appeared before a medical board of Respondent No. 2 for his medical assessment. The medical board issued a Certificate of Disability dated 13th July, 2023, assessing Appellants disability at 72% locomotor disability. On the basis of this evaluation, Appellant has been declared to be ineligible to pursue medical courses and avail 05% PwD reservation, under the applicable norms. Aggrieved thereby, he filed W.P.(C) 9618/2023 before this Court inter alia seeking quashing of the aforesaid Certificate of Disability and a direction to Respondents to allow him to participate in the counselling process for NEET-PG as a qualified General-PwD candidate. The counselling process is stated to commence from 25th July, 2023.
5.
In the aforesaid writ petition, when the matter was taken up for hearing on 24th July, 2023, learned Senior Counsel appearing for the Appellant requested that notwithstanding the merit position in the General-PwD category, Appellant should be considered for allocation of seats under the State quota. This request was however declined by the learned Single Judge, observing that as the Appellant had not been allotted a seat and had not secured the cut-off marks, no interim direction was necessary. Relevant portion of the impugned order reads as under:
5. Learned senior counsel for the petitioner, however, submits that notwithstanding the merit position of the General (PWD) category, the petitioner may be entitled for consideration against the State quota seat. He, therefore, apprehends that in case the seat is allocated under the State quota, the certificate impugned in the instant writ petition may cause serious prejudice to the rights of the petitioner.
6. As of now, since the petitioner has not yet been allotted the seat or the petitioner has not been found within the cut off marks, therefore, no interim directions are required. However, this court finds it appropriate to issue notice to the respondents and call upon them to assist the court as to why the impugned certificate should not be set aside.
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6.
Mr. Colin Gonsalves, learned Senior Counsel for Appellant, submits that the Appellant is eligible for admission under the OBC-PwD category for the State of Rajasthan. The registration process for state-level admissions in Rajasthan is set to commence soon, and in absence of any relief, Appellant would be gravely prejudiced as he would not be able to apply for seats in OBC-PwD State quota in Rajasthan. He argues that due to the impugned assessment, Appellant has been unfairly disallowed from seeking admission in postgraduate medical courses, despite his disability falling within the permissible range of 40% to 80% for enrolment to medical courses under PwD quota. Respondents have overlooked Appendix H to the Regulations on Graduate Medical Education (Amendment), 2019 which provides that candidates whose both hands are intact, with intact sensations, sufficient strength and range of motion are to be considered eligible for medical courses. Mr. Gonsalves further contends that Appellants prior work experience in the field since 2018 indicates that he possesses the desired strength and range of motion to sufficiently carry out medical procedures. Certificate of Disability issued on 13th July, 2023 therefore, deserves to be set aside. He submits that Appellant is interested to pursue postgraduate course in non-surgical stream of medicine, for which the disability of Appellant would not be an impediment.
7.
Mr. T. Singhdev, counsel for Respondent No. 1, submits that Appellant has not qualified NEET-PG as his score (260 marks) is below the qualifying criteria (i.e., 274 marks) for admission under the General-PwD category. Further, he submits that he cannot comment on the implications of Appellants disability and his eligibility for admission under OBC-PwD category in the States.
8.
We have considered the aforenoted contentions. The extent of a candidates disability must be assessed bearing in mind the prescribed guidelines regarding admission of students with specified disabilities for matters relating to admission in postgraduate courses in modern medicine. Adherence to the schedule for enrolment in medical courses is crucial and there is minimal scope of extending the timelines. Therefore, in our opinion, as an interim measure, it appropriate to have the Appellants disability re-evaluated by experts in order to ascertain whether his disability would impede him from pursuing a postgraduate/ MD course. Accordingly, following directions are issued:
8.1 Director of AIIMS, Delhi is directed to constitute a board of three experts in the relevant field to assess Appellants disability and specifically discern as to whether he would be able to perform the functions expected from a postgraduate specialist doctor in non-surgical fields and submit a detailed report to the Court in a sealed cover, within a period of three days from today, i.e., 04th August, 2023. The report shall be placed in W.P.(C) 9618/2023.
8.2 For the above purpose, Appellant shall present himself for medical examination before the board of doctors at AIIMS, Delhi on 02nd August, 2023 at
10:00 AM.
8.3 While assessing Appellants disability, the board shall take into consideration the aforenoted contentions raised by Mr. Gonsalves as well as the
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Appendix H to the Regulations on Graduate Medical Education (Amendment), 2019.
8.4 Director of AIIMS shall also provide their opinion on whether Appellant would be able to perform functions expected from a postgraduate specialist doctor in a non-surgical stream.
8.5 This order be communicated to Director of AIIMS, Delhi forthwith.
8.6 We make it clear that that for further directions pertaining to participation in the State counselling for OBC-PwD quota, the Appellant shall be free to approach the learned Single Judge for appropriate orders, depending on the report submitted by AIIMS, Delhi.
8.7. For this purpose, we direct that W.P.(C) 9618/2023 be listed before the learned Single Judge on 07th August, 2023.
8.8.
Registry is directed to place a copy of this order in W.P.(C) 9618/2023.
9.
With the above directions, the present appeal, along with pending applications, is disposed of.
9.
Learned counsel for the Petitioner has no objection to the DCI being impleaded as a party. Accordingly, on the oral prayer of learned counsel for the Petitioner, DCI is impleaded as Respondent No.5 to the present writ petition. Let an amended memo of parties be filed during the course of day.
10.
This Court is prima facie of the view that the correct Regulation has been impugned in the present writ petition as the Admission and eCounselling Services for Session 2024 issued by the Medical Counselling Committee (MCC) specifically states that for participation in MDS Counselling 2024, candidates are required to go for Registration at the official website of Medical Counselling Committee and that reservation of seats under PwD Category will be 5% as per the Gazette Notification of MCI.
11.
In view of the aforesaid as well as the order dated 01st August, 2023 passed in LPA No.571/2023, this Court directs the Director of AIIMS to constitute a Board of three experts in the relevant field to assess Petitioners disability and specifically discern as to whether he would be able to perform
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the functions expected from a post-graduate specialist doctor in the surgical field and file a detailed report before the Court in a sealed cover within a week in the present writ petition.
12.
For the above purpose, the Petitioner shall present himself for medical examination before the Board of doctors at AIIMS, Delhi on 15th July, 2024.
13.
It is clarified that the Director of AIIMS shall also provide his/her opinion on whether the Petitioner would be able to perform his functions expected from a post-graduate specialist doctor in a surgical stream or any other stream. This order be communicated to the Director of AIIMS, Delhi forthwith.
14.
The Respondents are directed to permit the Petitioner to register for counselling and to further permit him to participate in the counselling in the PwD category, which shall be subject to the final outcome of the writ petition. It is made clear that the order permitting the petitioner to participate in the counselling will not create any equity in his favour, and shall be subject to the outcome of the writ petition.
15.
List on 29th July, 2024.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J
JULY 11, 2024 KA
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