MANOHAR LAL SWAMI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by Manohar Lal Swami inter alia with the prayer that the petitioner be declared entitled to the benefit of reservation under the disability quota in terms of Section 32 of the Right of Persons with Disabilities Act, 2016 (for short 'the Act of 2016'). Further prayer has been made that the Regulation on Graduate Medical Education (Amendment), 2019 with Appendix "H" promulgated vide notification dated 04.02.2019 whereby benefits of locomotive disabilities has only been extended to lower limb, be declared ultra vires the Section 36 of the Act of 2016 as also Articles 14 and 21 of the Constitution of India and the respondents be directed to admit the petitioner in MBBS Course under the disability category from the date other candidates were so admitted.

(2.) The petitioner is a specially abled person having congenital left upper limb disability. The petitioner does not have the left thumb. Department of Medical and Health, Government of Rajasthan has issued a disability certificate (Form IV) to the petitioner certifying that the petitioner has permanent disability of 40%. The petitioner participated in the NEET Examination in the category of OBC (NCL) with further sub category of PWD placed under physically handicapped-2 category. The petitioner was placed at rank 179 in physically handicapped category and his All India Rank was 155159. The petitioner participated in the counseling but his candidature was rejected on the ground that due to absence of left thumb, he is not eligible for admission to medical course. The respondents in taking that decision relied upon the notification dated 04.02.2019 and Appendix H supra, which provided that the physically disability of a candidate categorized as locomotive disability compulsorily requires, "Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course." The said notification was reiterated by Medical Council of India vide notification dated 13.05.2019 implying thereby that a candidate, with upper limb disability or upper limb deformity, is not eligible to pursue MBBS course. According to the respondents, it is essential that the candidate should have both hand intact with due sensation in both the hands. Mr. Sandeep Singh Shekhawat, learned counsel for the petitioner argued that the aforesaid provision is contrary to the Act of 2016. Reference in particular has been made to definition "person with disability" under Section 2(s) of the Act of 2016. It is argued that the impugned provision is contrary to Sections 32 and 33 of the Act of 2016 as no such differentiation in the persons suffering from locomotive disability can be made. Learned counsel relied upon the judgment of Gujarat High Court in Dr. Deval R. Mehta Vs. Union of India & Others, AIR 2011 Guj 33 and argued that the Gujarat High Court by the aforesaid judgment declared the regulations ultra vires to the Constitution of India but the Supreme Court vide order dated 18.07.2011 stayed the operation of the judgment of the Gujarat High Court and directed that this will not disturb the direction of the High Court that the respondent-writ petitioner should be permitted to continue his studies. Subsequently, the Supreme Court vide order dated 23.04.2018 dismissed the SLP and the Civil Appeal as having become infructuous. Reference is also made to the order dated 19.12.2018 passed by the Division Bench of this Court at Principal Seat at Jodhpur in Ms. Geetika Tanwar Vs. State of Rajasthan & Others (D.B. Civil Writ Petition No. 15318/2017) in which case the petitioner having deformity in upper limb appeared in NEET 2017 wherein 5% seats were reserved for physically handicapped persons. The Division Bench of this Court while issuing notices of the writ petition directed the respondent-State to subject the petitioner therein to medical examination to assess her disability and thereafter consider her candidature under the physically handicapped category. The Medical Board assessed her permanent physical impairment at 60.18% but opined that that she should be able to learn and perform medical aspect of MBBS course in adapted and modified manner but she should have difficulty in learning and performing surgical aspects of MBBS course particularly procedures requiring both hands. The Convenor, NEET was directed to consider her candidature for admission to MBBS Course under the physically disabled category. Since no seat was available in the current academic session 2018- 19, the petitioner therein was not accommodated. Reliance before the Court was placed on the interim order passed by this Court in Raghav Agarwal Vs. The State of Rajasthan & Others, (D.B. Civil Writ Petition No. 9483/2017) in which case the petitioner was not only given admission to MBBS course but was also allowed to complete the course by interim order though he was having deformity in both hands and the left feet. This Court held that the provisions of the Act of 2016 are mandatory. It is argued that in the case of Ms. Geetika Tanwar (supra), reliance was placed on the order dated 09.10.2008 passed by the Supreme Court in Pramod Vs. Union of India (Civil Appeal No. 10353/2018) wherein the Supreme Court taking note of the fact that all the seats have been filled in that academic year directed the respondents therein to admit the petitioner in MBBS Course in next academic year. Division Bench of this Court in Ms. Geetika Tanwar (supra) directed admission of the petitioner in MBBS Course in the next year, i.e. academic year 2019-20.

(3.) Mr. Sandeep Singh Shekhawat, learned counsel relied upon the judgment in Dashrath Kumar Kuldeep Vs. Rajasthan University of Health Science and Another, D.B. Civil Special Appeal Writ No. 463/2017 in which case this Court relying on the judgment of the Gujarat High Court in Dr. Deval R. Mehta (supra) declared clause 9(2)(iv)(1)(a) of the Regulations relating to locomotive disability as ultra vires to Sections 32 and 33 of the Act of 2016, allowed the appeal and held the appellant therein entitled to complete Post Basic B.Sc. Nursing Course. Learned counsel further relied upon the order dated 21.10.2013 passed by Division Bench of this Court in Madhusudan Sharma Vs. State of Rajasthan and Others, D.B. Civil Writ Petition No. 13913/2012. This Court relying on the interim order dated 18.07.2011 passed by the Supreme Court in Medical Council of India Vs. Deval R. Mehta and Others, [Petition(s) for Special leave to Appeal (Civil) ../2011 (CC 11401/2011)] directed the respondents to declare the result of the petitioner therein of MBBS Part-I Examination and permit him to continue his further studies. Learned counsel also relied upon the order dated 29.09.2016 passed by Division Bench of this Court in Milan Pratap Singh Shekhawat Vs. The State of Rajasthan and Others, D.B. Civil Writ Petition No. 13208/2016 wherein similar interim order was passed in favour of the petitioner, who had 50% to 70% locomotive disability of lower limb. It is argued that the Act of 2016 nowhere provides any differentiation between upper limb and lower limb disability. Action of the respondents in denying him admission merely on account of his not having left thumb is per se contrary to the very scheme of the Act of 2016 object of which is to give respect for inherent dignity, individual autonomy including the freedom to make one's own choices and independence of persons; to remove discrimination and ensure full and effective participation and inclusion in the society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity equality of opportunity and accessibility. Moreover, Section 2(s) of the Act of 2016 does not provide for any differentiation in the disability and the reservation provided under Section 32 and 33 of the said Act. It is argued that if the view taken by the respondents is upheld, the very purpose of the Act of 2016 would be defeated.