Form No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE W.P. No.3363 (W) of 2012 With W.P. No.4489 (W) of 2010 Present : The Hon'ble Mr. Justice Prasenjit Mandal Dr. Priyabrata Chandra. Versus The State of West Bengal & ors. For the petitioner: Mr. Ranajit Chatterjee, Mr. D.R. Mukherjee, Mr. Arijit Dey. For the respondent nos. 3 & 4: Mr. Indranil Ray,
Mr. Ayan Bhattacharya.
For the M.C.I.: Mr. Saugata Bhattacharya.
For the respondent no.6/UOI: Mrs. Samta Mitra. For the State: Mr. Subrata Talukdar, Mr. Abdul Momen.
Heard On: 12.02.2013, 25.02.2013 & 28.02.2013. Judgement On: March 20, 2013.
Prasenjit Mandal, J.: These two applications are disposed of by this common judgment and order inasmuch as they involve the common question of fact and law.
For convenience, the W.P. No.3363(W) of 2012 is taken up for hearing first.
W.P. No.3363(W) of 2012:-
This application is at the instance of a Doctor and is filed for issuance of a writ in the nature of mandamus commanding the respondents to cancel, rescind, withdraw the impugned notification dated March 25, 2009 appearing as Annexure P-6 and also para 6.2 of the guidelines framed by the University of Health Sciences and other consequential reliefs.
The petitioner has contended that he is a disabled person and he appeared in the Joint Entrance Examination as physically handicapped candidate with 50% disability viz., hearing impairment. The petitioner was refused admission to the M.B.B.S. Course owing to disability but after the order of the Court, the petitioner got admission to M.B.B.S. Course under the category of disabled person and at present, he is working under the Government of West Bengal under its rural health services.
He applied for admission to M.D./M.S. Course but the petitioner's name was not there under the category of physically challenged candidates. Then, upon getting an information under the provisions of R.T.I. Act, 2005, he challenged the notification issued by the Medical Council of India dated March 25, 2009 as contrary to the provisions of Section 39 read with Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Medical Council of India is vested with exclusive power to lay down the standard of medical education and so, the Council is empowered under the Act to ensure the physical disability quota be filled up as per 1995 Act.
The Medical Council of India has framed Rules that the persons with locomotory disability of lower limbs between 50% to 70% are eligible for admission under 3% seats reserved for physically handicapped candidates and if such candidates are not available, then 3% quota can be filled up by candidates having locomotory disability of lower limbs between 40% to 50%. But, the other considerations, such as, hearing impairment, vision defect, etc. were not considered by the Medical Council of India. So, the Medical Council of India has given a narrow meaning in respect of the word "persons with disabilities" and as such, the amendment rules dated March 25, 2009 and the Rule 6.2 for admission to Post Graduate Degree and Diploma Courses in modern medicine 2011 are contrary to the provisions of Section 39 read with Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The petitioner has sought for the reliefs as stated earlier.
The respondent no.5 has filed an affidavit-in-opposition contending, inter alia, that the impugned notification dated March 25, 2009 and also para 6.2 of the guidelines framed by the University of Health Sciences are the guidelines for admission and expert body has framed such rules. The Medical Council of India being the expert body is empowered to prescribe the minimum standard of medical education in India. The Section 19A of the Indian Medical Council Act gives the Council such power and it is empowered to frame rules under Section 33 of the said Act including the reservation of physical disability quota for locomotory disability of lower limbs under the provisions of statutory regulations. It has been clearly indicated that persons with locomotory disability of lower limbs between 50% to 70% are eligible under 3% seats reserved for physically handicapped candidates and if such candidates are not available then the 3% quota can be filled up by candidates having locomotory disability of lower limbs between 40% to 50%.
Pursuant to several decisions of different High Courts and the Apex Court, the Medical Council of India with the previous approval of the Central Government has amended its Regulations by notification dated March 25, 2009 extending the benefit of reservation to the physically handicapped candidates of such category only. There is a schedule of time for admission to the Post Graduate medical education and the admission is to be completed in terms of the time schedule prescribed by the Medical Council of India as per order of the Apex Court. No admission in any medicine course can be made without fulfilling the minimum eligibility criteria in terms of the Post Graduate Medical Education (Amendment) Regulations 2009 Part-I.
The following questions are the subject matter of this writ petition:-
i) Whether the Notification dated March 25, 2009 of the Medical Council of India is valid when all the disabled persons made a class and there cannot be any mini- classification amongst the disabled persons; and
ii) Whether the reliefs as sought for in the application can be granted.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is the relevant rule giving certain facilities to the physically challenged persons. The Medical Council of India is no doubt an expert body in respect of medical matters including the matter of admission and such Council had been constituted under the provisions of the Indian Medical Council Act, 1955. Under Section 33 of the said Act, the Council is empowered to make rules for admission to different courses of medical education including the Post Graduate Courses. Accordingly, the Council has framed the rules by the Notification dated March 25, 2009 for admission of certain categories of the disabled persons to the Post Graduate medical courses.
For convenience, the relevant portion of the said notification is quoted below:-
3. In Clause 9 under the heading "SELECTION OF POSTGRADUATE STUDENTS", the following shall be added after sub-clause 9(1):
"1(a). 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%. Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates.
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 Postgraduate Medical course after 31st of May."
It may be noted herein that such a notification had been made with the previous approval of the Central Government.
The petitioner claims to be a disabled person under the category of hearing impairment having 50% disability as appearing as Annexure P-1 at page no.50 of the application.
It may be recalled herein that the petitioner did not get the chance of admission to M.B.B.S. Course in the usual way but he filed a writ petition being W.P. No. 12343(W) of 2001. That writ petition was dismissed. Then, he preferred an appeal being M.A.T. No.3779 of 2001 which was allowed by this Hon'ble Court directing that the writ petitioner would be entitled to apply for the next examination under the reserved category and his candidature should be considered by the respondents in the category of disabled persons for which the respondents must reserve not less than 3% seats. Accordingly, the petitioner got the chance to the M.B.B.S. Course and he completed the course and then he applied for the Post Graduate course. But, his candidature was not considered under the category of disabled persons for the reason that he did not come within the category of locomotory disability of lower limbs within the percentage as indicated above.
Mr. Ranajit Chatterjee, learned Advocate appearing for the petitioner, has contended that the notification in question is violative of the Government Notifications, such as, Annexure P-4 appearing at page no.68 wherein it has been clearly indicated that the 3% of the seats at the time of all new admissions in all Government Educational Institutions and other Educational Institutions receiving aid from the Government shall be kept reserved for the disabled persons with immediate effect.
Thus, he has submitted that the Regulations of 2009 framed by the Medical Council of India being violative to the directions of Annexure P-4 at page no.68 cannot be supported and so, the prayer of the writ petitioner should be granted.
On the other hand, Mr. Saugata Bhattacharya, learned Advocate appearing for the Medical Council of India, has contended that the object of the Indian Medical Council Act is very much clear and the Council is empowered to frame Regulations under Section 33(l) of the 1956 Act. Section 19A of the Act empowers to frame Rules under Section 33 of the said Act including the reservation of physical disability quota for locomotory disability of lower limbs under the provisions of statutory regulations.
He has contended that the impugned notification dated March 25, 2009 had been made in conformity with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 so far as admission to Post Graduate Medical Course is concerned.
He has also contended that so far as the 2012 Course is concerned, for which the writ petitioner had filed the writ is already over and there is a time schedule indicating that an application is to be filed within May 31 of the year. In consideration of the fact that, the Doctors are to deal with patient for giving proper treatment only the persons with locomotory disabilities of lower limbs are allowed to be admitted to the Post Graduate level course, i.e., higher studies. So, this classification is justified.
He has referred to the affidavit on behalf of the respondent no.5 and thus, he has submitted that the General Body Meeting of the Council dated October 20, 2003 considered the reservation for the persons with disabilities for admission to medicine courses as appearing at page no.89 and the Council approved the recommendations of the Executive Council. This body being an expert body, the Medical Council of India had accepted the recommendations as a policy decision.
Mr. Ranajit Chatterjee has referred to the judgment of the Supreme Court in Civil Appeal No.6120 of 2001 appearing at page no.43 of the reply affidavit of the respondent no.5 and thus, he has submitted that the decision of Kerala High Court has been set aside and it was held that Section 39 of the 1995 Act deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily, therefore, the provisions thereon must be complied with. So, 3% seats must be reserved for persons with disabilities.
By referring the paragraph no.8 of the decision of Union of India v. Sanjay Kumar Jain reported in (2004) 6 SCC 708, Mr. Chatterjee has contended that the enactment of a regulation shall be given to give full effect to the Proclamation on Full Participation and Equality of the People with Disabilities. Steps should be taken to remove any discrimination against persons with disabilities in the sharing of development benefits vis-à-vis non- disabled persons.
By referring the judgment of Union of India v. Devendra Kumar Pant & ors. reported in (2009) 14 SCC 546, Mr. Chatterjee has contended that according to Section 39 of the 1995 Act, all educational institutions must reserve seats for persons with disabilities without restricting reservation only to certain categories of persons with disability.
Refuting the validity of the notification in question, Mr. Chatterjee has referred to the decision of State of T.N. & anr. v. P. Krishnamurthy & ors. reported in (2006) 4 SCC 517 and thus, he has contended that in the discrimination as made in the notification in question, there is a repugnancy to the laws of the land by not taking into consideration of the disabilities of other categories, such as, vision, hearing impairment, etc. Refuting the contention of Mr. Chatterjee, Mr. Saugata Bhattacharya, learned Advocate appearing for the MCI, has contended that upon taking approval of the Government as appearing from page no.95 of the reply affidavit of the respondent no.5, the Medical Council of India being an expert body has framed the regulations for admission to medical courses for the physically challenged and persons with disability. Such, classification has been upheld by the decision of the Division Bench of the Orissa High Court as appearing at page no.97.
Mr. Bhattacharya has also referred to the decisions of State of Kerala v. Kumari T.P. Roshana & anr. reported in (1979) 1 SCC 572 particularly the paragraph no.16, Medical Council of India v. State of Karnataka & ors. reported in (1998) 6 SCC 131 particularly paragraph no.24 and Dr. Preeti Srivastave & anr. v. State of Madhya Pradesh & ors. reported in AIR 1999 SC 2894 particularly paragraph no.57, which lay down that the Medical Council of India is an expert body to control the minimum standards of medical education that the regulations framed by the Medical Council of India, on taking approval of the Government, have the statutory force and those are mandatory.
He has also pointed out that in case of any repugnancy between the provisions of the Indian Medical Council Act, 1956 and the Act of 1995, according to the 7th Schedule List III Item No.56, the repugnancy of the 1956 Act shall prevail.
He has also contended that according to the decision of Annamalai University v. Secretary to Government, Information and Tourism Department & ors. reported in (2009) 4 SCC 590 particularly the paragraph no.s 42 & 44, the part of the regulation has a binding nature to all concerns and the said regulation must prevail. This has also been clarified by the decision of W.P. No.4489 (W) of 2010.
'The Medical Council of India has fixed the dates for filing applications as May 31 and in such a situation, according to the decision of Mridul Dhar (Minor) & anr. v. Union of India & ors. reported in (2005) 2 SCC 65 particularly the paragraph no.s 31 & 32, the regulation framed by the Medical Council of India should prevail and in such a situation, no relief can be granted', says Mr. Bhattacharya.
Mrs. Santa Mitra, learned Advocate for the respondent university supporting the contention of Mr. Bhattacharya, has contended that according to the point no.220.127.116.11, the choice regarding Category (either open or Government-sponsored seats) or Status (general and caste etc.), once exercised, cannot be subsequently changed. Option once exercised by the candidates is final. Therefore, the applicant will be very particular and cautious during filling of forms.
Having due regard to the submissions of the learned Advocates of both the sides and the decision of the Apex Court as referred to above, I am of the view that the regulations framed by the Medical Council of India with prior permission of the Central Government has the statutory force and those regulations should be mandatorily observed as per decisions referred to by Mr. Saugata Bhattacharya.
As noted above, in case of any repugnancy between the 1956 Act and 1995 Act, the provisions of the 1956 Act shall prevail and so, the binding nature of the regulations framed by the Medical Council of India must be observed by all the concerns and the said regulations should be followed. The regulation making classification of the disabled persons by the impugned notification has been done on public policy that a medical practitioner possessing the higher degree must exercise the senses to make proper investigation relating to the disease and that is why reservation with certain percentage as indicated in the notification in question has been accepted for the Post Graduate Course keeping in view that below and above the level of the disabilities of locomotory category will not be desirable for giving admission under the categories of disabled persons.
As regards other category of disabilities, such as, visually handicapped and hearing impairment as in the case of the writ petitioner, persons of such disabilities have been excluded on the public policy that while a correct vision is absolutely necessary for the study and for the practice of medicine, hearing impairment will interfere with the training in medical education. Such stand of the Medical Council of India has been clarified in the earlier regulations appearing at page no.s 41 & 42 of the affidavit filed by the respondent no.5. There is a sound reasoning in accepting the locomotory disabilities of certain categories only.
Above all, the admission must be completed by May 31 of the year so that a student seeking admission in the Post Graduate Course can pursue his/her studies from the first day of the start of the Course in such higher education.
As noted above, more than ten months have already expired since the date of September 30, 2012 and so, the course has proceeded to a considerable stage, there cannot be any retrospective teaching as per decision referred to above.
The petitioner is claiming the benefit of the disability on the ground of hearing impairment which is not included in the impugned notification. Accordingly, I am of the view that the petitioner is not entitled to get either of the reliefs as prayed for in the writ application.
The points as framed are, thus, answered against the writ petitioner.
In the result, the writ petition fails to succeed and is, therefore, dismissed.
There will be no order as to costs.
Interim order as passed earlier in the writ petition stands vacated.
W.P. No.4489(W) of 2010:-
This application has also been filed by the same writ petitioner claiming the selfsame relief and for consideration of his candidature in M.D./M.S. Courses, 2010. This application is also dismissed on the same reasoning as in W.P. No.3363(W) of 2012.
There will be no order as to costs.
Interim order as passed earlier in the writ petition stands vacated.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)