VIDHI HIMMAT KATARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In all the writ petitions, the respective petitioners - students have prayed for an appropriate writ, order or direction directing the respondents - State Government to treat the petitioners eligible for reservation under Persons with Disability (PwD category) and grant them admission in MBBS Course for the academic year 2019-20. It is the case on behalf of the respective petitioners that all of them are eligible to pursue MBBS Course and they shall be granted admission under the PwD category as they are suffering from 'locomotor disability'. All of them are seeking admission to MBBS Course in the reserved category under PwD quota.

(2.) That Section 32 of the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the '2016 Act'), which came into force with effect from 19.04.2017 provides for reservation of not less than 5% in government educational institutions. Accordingly, the Medical Council of India notified the Regulations for providing 5% seats to candidates with benchmark disability in accordance with the provisions of the 2016 Act. It is the case on behalf of the petitioners that process of admission for MBBS Undergraduate course for the academic year 2019-2020 commenced in the last week of October, 2018 and the eligible candidates were to submit applications on-line between 01.11.2018 to 30.11.2018. That the admit cards were released on 15.04.2019 and the examination was held on 5.5.2019, followed by declaration of result on 5.6.2019. All the respective petitioners appeared in the NEET (UG) 2019 and were declared successful. However, it is required to be noted that in the meantime the Board of Governors in supersession of the Medical Council of India amended the Regulations of Graduate Medical Education, 1997, by notification dated 4.2.2019, whereby Appendix 'H' came to be added to the erstwhile Regulations, 2017 - providing for minimum degree of disability to be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. Appendix 'H' further provided that in case of 'physical disability or locomotor disability', the applicant may be assessed for "Both hands intact, with intact sensation, sufficient strength and range of motion" as essential to be considered eligible for medical course". As observed hereinabove, thereafter the result of NEET (UG) 2019 came to be published in the month of June, 2019. As per the requirement, all the respective petitioners appeared before the Medical Board. However, all the respective petitioners were not fulfilling the requisite criteria as per Appendix 'H' to notification dated 04.02.2019 in the list published by the State Government on 29.06.2019. The petitioners were declared non-eligible for medical course. That thereafter the petitioners appeared before the Medical Appellate Board and the Medical Appellate Board also declared the petitioners not eligible for medical course. Hence, the respective petitioners have preferred the present petitions under Article 32 of the Constitution of India for the afore-stated reliefs.

(3.) Learned Advocate appearing on behalf of the respective petitioners have vehemently submitted that the case of the petitioners for admission in the MBBS Course under the reserved category of PwD for the academic year 2019-20 shall not be governed by notification dated 04.02.2019, and that they shall be governed by the MCI Regulations, 2017. It is submitted that the relevant date to ascertain eligibility of the petitioners for medical course is to be determined on the date when the process of selection commenced, i.e., on 01.11.2018. It is submitted that on the relevant date MCI Regulations, 2017, dated 22.01.2018, were applicable and therefore eligibility, as such, for medical course is to be determined in terms of the provisions of the said Regulations. It is submitted that Appendix 'H" to the notification amending the Regulations, 2017, which came into force with effect from 04.02.2019, therefore shall not be applicable.