RAJASHREE KHOUNDQ Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner Miss Rajashree Khound seeking an order from this Court directing the Respondents to allow her to take admission in MBBS course for the session 2012 on the basis of her selection in the Combined Entrance Examination as per the result published on 24.07.2012. The petitioner has demonstrated academic excellence by way of securing 89.3% marks in HSLC Examination followed by 86.6% marks in Higher Secondary (Science). Thereafter she contested for admission to MBBS/BDS courses in the Medical Colleges of Assam and Regional Dental College at Guwahati for the session 2012 through the Combined Entrance Examination. The petitioner secured 186 marks and her rank in the Entrance Examination is claimed to be 199. In the Educational Notice published showing the names of candidates who appeared for counseling and selected by a Selection Board thereby allowed for provisional admission into the First Year MBBS/BDS courses in the Medical Colleges of Assam and Regional Dental College at Guwahati for the session 2012, the name of the petitioner bearing Roll No. 381071 finds place against Serial No. 6 in the list of "Un-reserved (General Merit)" candidates for Jorhat Medical College, Jorhat. However, when the petitioner appeared before the respondent No. 3, the Principal, Jorhat Medical College, Jorhat for admission in terms of her selection, she was verbally informed that as she was found suffering from Hearing Impairment of approximately 69% in the left and 71% in the right ear, she was not eligible for admission in the Medical College. THIS was followed by an application dated 29.07.2012 filed by the petitioner asking the Principal to put in record the reasons for rejection of admission followed by a representation filed by her on 30.07.2012 to the Director of Medical Education, Assam stating that due to her hearing problem she was wearing hearing aid and that she is quite a normal girl having no physical disabilities but she is being denied admission inspite of her selection without giving any lawful reason. The petitioner further stated that her hearing impairment is of no hindrance for pursuing studies in MBBS course with the aid of modern sophisticated appliances.

(2.) PER contra, the respondent No. 2, the Director of Medical Education, Assam has filed an affidavit-in-opposition, inter alia, disclosing that during the admission process of the writ petitioner consequent to her selection in the Combined Entrance Examination, the Principal, Jorhat Medical College constituted a Medical Board which examined the candidates for their medical fitness and the said Medical Board found the writ petitioner unfit for admission into MBBS Course due to her bilateral sensory neuronal deafness (Right ear 60%, Left ear 77%). It is the stand of the respondents that in terms of the Admission Rules (Regulation for Admission of Undergraduate Students) Rules 2007 (amended upto 2012), and the Medical Council of India guidelines, a candidate must be found physically fit by the Medical Examination Board at the time of admission. The respondents have also relied upon a Medical Council of India's circular dated 14.07.2000 containing the guidelines of the said Council for filling up of reserved seats for persons having locomotor disabilities in Medicine Courses. Quoting a case decided by the Hon'ble Delhi High Court (Rekha Tyagi ­Vs- Vice Chancellor, University of Delhi and others) wherein it was held that section 39 of the PERsons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995 (for short, the Act 1995) has no application for reservation of seats in educational institutions as the said section falls under the Chapter "Employment". The Medical Council of India further noted that the said judgment was reversed by the Hon'ble Supreme Court of India mandating reservation of seats in favour of persons suffering from physical disabilities, and that the Medical Council of India had decided stipulation of benchmarks/degrees of disability for allowing students suffering from disabilities to get admission into Medical College. However, the said benchmark fixed by Medical Council of India apparently relates only to locomotor disabilities. The circular further provides that candidate seeking benefit of reservation has to present him/herself before Medical Board and obtained valid disability certificate from Medical Board which is not more than 3 months old from the date of submitting application for admission in reserved categories for disabled candidates. It is in terms of this Medical Council of India guidelines that the Medical Board conducted thorough examination including Audiogram which revealed the gross impairment of hearing of the writ petitioner.

(3.) THE applicability and ambit of the aforesaid section 39 of the Act 1995 has been subjected to judicial interpretation by the Hon'ble Supreme Court of India in the case of All Kerala Parents' Association [of the] Hearing Impaired ­versus- State of Kerala (C.A. No. 6120 of 2001 decided on 11.09.2002). In the backdrop of a decision by the Kerala High Court holding that section 39 occurring in Chapter VI of the Act dealing with Employment, the expression 'seat' in section 39 would mean "posts" in the question of reservation posts for appointment in Educational Institutions and would not arise for reservation of seats in Educational Institution; the Apex Court laid down the law at paragraph 3 in the following terms :