Miss Debashree Mahapatra V. Union of India and others

WP(C)/15952/2016

AI Insights

Miss Debashree Mahapatra, the petitioner, a candidate with 45% locomotor disability, was initially certified by the District Medical Board, Khurda, in 2011. However, for the 2016 NEET Examination, she was re-evaluated by a different medical board at SCB Medical College, Cuttack, which assessed her disability at only 10%. This led to her exclusion from the merit list for the physically handicapped category in the MBBS/BDS admissions. The petitioner challenged this decision, arguing that her original certificate should have been considered. The court, referencing the guidelines from the Medical Council of India and the specific provisions of the 1995 Act, upheld the decision of the medical board and dismissed the petition.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 802432 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 25-11-2016
• Assessment Year: misc
• Other Referred Cases: Kunal Singh v. Union of India, Chairman, Odisha Joint Entrance Examination v. Jasobanta Nayak and others
• Laws Referred To: Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Medical Council of India Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: D LENKA
• Assessee Lawyers: D P SARANGI
• Keywords: Disability certificate; Medical board; Admission denial; NEET Examination; Physically challenged category
• Section: 73(1); 39; 73(2); 73(4); 2(I); 73(6); 2(t); 2(o)

Judgement Text

"ORISSA HIGH COURT: CUTTACK W.P.(C) No. 15952 of 2016 In the matter of an application under Articles 226 & 227 of the Constitution of India. ----------------------- Miss Debashree Mahapatra …….. Petitioner - versus - Union of India and others ..…… Opp. Parties For Petitioner : M/s. D.P. Sarangi, S. Sarangi and S. Sarangi, Advocates. For Opp.Parties: Mr. D. Lenka, Central Govt. Counsel (O.P. No.1) M/s. R.C. Mohanty, K.C. Swain and Miss.S. Pattnaik, Advocates (O.P.No.2) M/s T.N. Pattnaik, S.Pattnaik and Manoj Ojha, Advocates (O.P.No.3) M/s S. Palit, A.K. Mahana, A. Mishra and A. Parija, Advocates (O.P.No.4) P R E S E N T : THE HON’BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON’BLE DR. JUSTICE B.R.SARANGI Date of Hearing: 18.11.2016 : Date of Judgment: 25.11.2016 2 DR. B.R SARANGI,J. The petitioner, who is a physically challenged candidate, having 45% locomotor disability of right leg as per disability certificate issued by the District Medical Board, Khurda on 02.04.2011, and appeared at the National Eligibility-cum-Entrance Test (NEET) Examination, 2016, has filed this application for having been debarred from being selected for admission into MBBS/BDS course in the medical colleges of the State of Odisha. 2. The factual matrix of the case is that the petitioner, being a physically challenged candidate, applied for and appeared in the NEET Examination, 2016 written test conducted on 24.07.2016 by the opposite parties for admission into MBBS/BDS course in the medical colleges of State of Odisha for the session commencing in 2016. Though the physically challenged certificate was issued by the District Medical Board, Khurda on 02.04.2011, she was made to appear before the SCB, Medical Board on 25.08.2016 and on the basis of such report she has been deprived of getting 3 admission into MBBS/BDS course of the medical colleges of the State of Odisha. Hence, this application. 3. Mr. D.P. Sarangi, learned counsel for the petitioner strenuously urged that even though the petitioner had produced the certificate issued by the competent authority under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rules framed thereunder by the competent District Medical Board on 02.04.2011 indicating the disability of the petitioner, the same has not been taken into consideration on the pretext that the medical board constituted by the opposite parties examined the petitioner on 25.08.2016, and on the report so furnished, she has not been given opportunity to take admission into the course applied for. It is further contended that if the certificate has been given by the competent authority, the opposite parties could not have directed the petitioner to appear before the medical board other than the board constituted under the Act and Rules for assessment of disability. His further contention is that the petitioner has not been examined, as was required to be done, and by merely looking at her, the disability had been 4 assessed without taking into consideration the certificate granted by the competent authority, thereby depriving her of getting admission into the MBBS/BDS course under physically handicapped category. To substantiate his contention, reliance has been placed on the judgment of the apex Court in the case of Kunal Singh v. Union of India, AIR 2003 SC 1623. 4. Mr. R.C. Mohanty, learned counsel for the opposite party no.2-Medical Council of India, though has not filed any counter affidavit, relied upon the communication dated 14.07.2003 containing the guidelines issued by the Medical Council of India for filling up of reserved seats for persons having locomotor disabilities for admissions into medicine courses. It is stated that the authorities are competent to issue such guidelines under the provisions of the Medical Council of India Act to maintain transparency in the admissions for medical courses, wherein it has been specifically stated that the last valid disability certificate of the candidate of the medical board should not be more than three months old from the date of submitting his/her application seeking admission in the reserved category for 5 disabled candidate. It is also contended that the petitioner having relied upon the disability certificate issued by the competent board on 02.04.2011, which is more than five years old, the same is contrary to the guidelines governing the field. In that view of the matter, no illegality or irregularity has been committed by the authority in not considering the admission of the petitioner on the basis of the physically handicapped certificate issued by the medical board constituted under the provisions of the brochure and in accordance with the provisions contained in the Act and Rules governing the field. 5. Sri S. Palit, learned counsel appearing for opposite party no.4-OJEE has stated that the certificate issued by the medical board constituted under the brochure to determine the disability is well within the competency of the authority concerned and, as such, any action taken thereof cannot be said to be illegal or arbitrary. Further, the reliance placed on the certificate issued by the medical board constituted under the provisions of the Act and Rules dated 02.04.2011 being five years old, as per the Medical Council of India guidelines the same cannot be taken into consideration 6 for admission into the MBBS/BDS course. It may be that some certificates may have application for receiving some benefits under the Act, but not for admission into MBBS/BDS course for the session 2016. The petitioner, with eyes wide open and knowing the conditions stipulated in the brochure issued for the admission for the year 2016, having appeared at the examination, if any action has been taken pursuant to the conditions stipulated in the brochure, no illegality or irregularity can be said to have been committed by the authority and, as such, the petitioner cannot claim for admission under the physically handicapped category dehors the certificate issued by the board constituted for the purpose. It is further contended that the allegation made by the petitioner that she has not been examined by the medical board constituted for OJEE is not correct. To substantiate the same, he has produced the document dated 15.11.2016 in support of the examination conducted by the board on 25.08.2016 wherein the permanent locomotor disability of 10% has been determined by the board. In that view of the matter, if any action has been taken pursuant to such report of the board, it cannot be construed that any illegality has 7 been committed in debarring the petitioner from getting admission into the MBBS/BDS course for the session 2016. It is further contended that opposite party no.3 has prepared the merit list and on that basis opposite party no.4 has taken steps for admission of candidates to various courses. Thereby, excepting to prepare merit list, opposite party no.4 has no role to play in the case. Therefore, they are not necessary party to the present proceeding. 6. We have heard Sri D.P. Sarangi, learned counsel for the petitioner, learned Central Govt. Counsel for opposite party no.1, Sri R.C. Mohanty, learned counsel for opposite party no.2 and Mr. S. Palit, learned counsel for opposite party no.4. Pleadings between the parties having been exchanged, with the consent of learned counsel for the parties this writ petition is being disposed of at the stage of admission. 7. For safeguarding the rights of the persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life, they should have given equal opportunities and keeping their hopes and aspirations in view, a meeting called “Meet to 8 Launch the Asian and Pacific Decades of Disabled Persons” was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure “full participation and equality of people with disabilities in the Asian and Pacific regions”. Accordingly, a proclamation was adopted in the said meeting. Consequentially, to give effect to the same, a comprehensive legislation has been enacted called “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 19958 (hereinafter referred to the “1995 Act”). Section-2(i) defines ‘disability’ to mean:- (i) blindness; (ii) low vision; (iii) leprosy-cured (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; Section 2(o) defines “locomotor disability”, which reads as follows:- “locomotor disability means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy.” Section 2(t) defines “person with disability”, which reads as follows: “person with disability means a person suffering from not less than forty percent of any disability as certified by a medical authority”. 9 The scheme also prescribes for constitution of Central Coordination Committee, the State Coordination Committee and prevention and early detection of disabilities, education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. The Chief Commissioner for Persons with Disabilities at the central level, and Commissioners for Persons with Disabilities at the State level to take steps to safeguard the rights of the persons with disabilities. Section 39 states as follows:- “All educational institutions to reserve seats for persons with disabilities – All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three percent seats for persons with disabilities.” 8. The purpose of introduction of section 39 is to treat the persons with disabilities better than that of general stream and for them not less than three percent seats should be reserved to afford an opportunity for employment under Chapter-VI, but so far as education is concerned, it is specifically dealt in Chapter-V, which contained Sections 26 to 31. 9. In exercise of powers conferred by sub-sections (1) and (2) of Section 73 of the 1995 Act, the Central Government has 10 framed Rules, called “Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996. Chapter-II deals with disability certificate. Rule 3 deals with application for issue of disability certificate. Sub-rule (2) of Rule 3 prescribes that the application shall be submitted to – a medical authority competent to issue such a certificate in the district of the applicant’s residence as mentioned in the proof of residence submitted by him with the application or the concerned medical authority in a government hospital where he may be undergoing or may have undergone treatment in connection with his disability. Rule-4 deals with issue of disability certificate. Sub-rule (1) of Rule 4 reads as follows:- “On receipt of an application under rule 3, the medical authority shall, after satisfying himself that the applicant is a person with disability as defined in sub- clause (t) of section 2 of the Act, issue a disability certificate in his favour in Form II, Form III or Form IV as applicable.” Sub-rule (2) of Rule 4 states that the certificate shall be issued by the medical authority within a specified time. Rule 6 states as follows:- “Certificate issued under rule 4 to be generally valid for all purposes – A certificate issued under rule 4 shall render a person eligible to apply for facilities, concessions and benefits admissible under schemes of the Government and of Non-Governmental Organizations funded by the Government, subject to such conditions as 11 may be specified in relevant schemes or instructions of Government, etc., as the case may be.” 10. On perusal of Rule 6, it is made clear that the certificate issued under Rule 4 renders a person to be eligible to apply for facilities, concessions and benefits admissible under the schemes of the government and of non-governmental organizations funded by the government, subject to such conditions as specified in the relevant schemes or instructions of the government. Using the word ‘subject to’ indicates that the authority can impose conditions under relevant scheme or instruction of the government, as the case may be. Rule 4 clearly specifies issuance of certificate to a person eligible to apply for facilities, concessions admissible under the scheme. Thereby, even if a person has received a certificate under Rule 4, that is only applicable for receiving facilities, concessions and benefits. 11. In Westminister City Council v. Ray Alan (Manshops) Ltd, (1982) 1 All ER 771, while considering the provisions contained under Section 14(1)(b)(ii) of Trade Description Act, 1968, it is held:- “The word ‘facilities’ should be construed in relation to ‘services and accommodation’ and not ‘shopping facilities’. 12 12. In R.V. Cardiff Local Health Board, (2005) 3 All ER 1000, while considering Section 3(1)(e) of the National Health Service Act, it is held: “The word ‘facilities’ in Section 3(1)(e) of the Act means ‘that which facilitates’”. 13. In V. Pechimuthu v. Gowrammal, (2001) 7 SCC, the word concession has been considered to the following effect: “A ‘concession’ is a form of ‘privilege’. 14. In Brindaban Das v. State of W.B., (2009) 3 SCC 323, while considering the word ‘concession’ the apex Court held as follows: “The ‘concession’ relating to reservation does not mean that any of the vacant posts were required to be kept reserved for a Scheduled Caste or Scheduled Tribe candidate. It is only when such a candidate come within the number of vacancies that such a concession would be applicable to him/her for appointment without going through the selection process.” 15. In common parlance, ‘benefit’ means advantage; profit; gain; interest; use; whatever contributes to promote prosperity or add value to property. While 13 considering the word ‘benefit’ under Section 93(4)(c) of the Income Tax Act, 1961, it is held:- “’Benefit’ includes a payment of any kind.” 16. In Meenakshi Mills Ltd. V. Their Workmen, AIR 1958 SC 153, while considering Section 2(1)(m) of the Workmen’s Compensation Act 1923, the apex Court held as follows: “The word ‘benefit’ occurring in Section 2(1)(m) of the Act must be interpreted to mean all such benefits as a workman is entitled to have as of right.” 17. In Punjab National Bank v. K.L. Kharbanda, AIR 1963 SC 487, while considering the provisions contained under Section 33-C(2) of the Industrial Disputes Act, 1947, the apex Court held as follows: “Benefit includes monetary benefit. The word ‘benefit’ used in Section 33-C(2) is not confined merely to non-monetary benefit which could be converted in terms of money but is concerned with all kinds of benefits, whether monetary or non-monetary to which a workman may be entitled. Example: Sastry award had conferred a benefit on the workman by providing for fixation of pay in the new scale, under para 292(7), even though that benefit may be monetary and there was a dispute between the parties as to the amount of that benefit, it is open to the workman to apply to the Labour Court for computation of that benefit in terms of money, and the Labour Court would have jurisdiction to entertain the application and compute the amount due on the basis of the benefit conferred by the award.” 14 18. In Gronia v. Grierson, [1968] 1 All ER 593 (English), while considering Section 2(3) of Betting, Gaming and Lotteries Act, 1964, it is held: “’Benefit’ is word of wide import, it means no more than “advantage.” Therefore, the facilities, concessions and benefits available to be extended under Rule-6 on the basis of the certificate granted under Rule-4 of the Rules, 1996 are subject to the conditions as specified in the relevant scheme. The word ‘subject to’ has been considered by the apex Court in various judgments. 19. In Ashok Leyland Ltd. V. State of Tamil Nadu, (2004) 3 SCC 1, the apex Court held that ‘subject to’ is an expression whereby limitation is expressed. In Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311, the use of expression ‘subject to’ in Section 30 of the Act would include Section 34 of the Act. In S.P. Industries Co. Ltd. V. Electricity Inspector and E.T.I.O., AIR 2007 SC 1984, the expression ‘subject to’ conveys the idea of a provision yielding place to another provision or other provisions subject to which it is made. 15 20. Applying the above to the present context, by using the expression “subject to” whereby it has got limited expression to the extent that the person can get facilities, concessions and benefits available pursuant to the certificate issued under Rule 4, but subject to such condition as may be specified. Thereby, the authority has got right to frame its own guidelines for determination of persons with disability as defined under sub-section (t) of Section 2 of the 1995 Act. 21. The Odisha Joint Entrance Examination, 2016 issued an information brochure wherein clause 2.1.4 states as follows:- “At present 3% of seats are reserved for Physically Challenged or Person with Disability candidates for admission to B. Tech. /B. Arch/ MBA/MCA/B. Pharm/ Integrated MBA(5 years)* / courses. The candidates with 40% disabilities in consonance with section-39 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 are eligible to be considered under Physically Challenged Category for admission to B. Tech./B. Arch/MBA/ MCA/ B. Pharm/Integrated MBA (5years)*/courses. The medical standard of PC category candidates will be decided by a medical board specifically constituted with Senior Professors of the premier medical college and hospital: SCB Medical College, Cuttack, and Chairman OJEE-2016 or his representative under the Chairmanship of Principal, SCB Medical College or his nominee, that they are eligible to be categorized as Physically Challenged candidates and capable of undergoing each part of the requirements for B. Tech. /B. Arch/ MBA/MCA/B. Pharm/ Integrated MBA(5 years) (also it is valid for courses included for counseling later on). The decision of this Board will be final and binding. Percentage and type of disability will be declared by Medical Board. Based on this data, admission will be made. Any case if 16 a candidate is declared not to be physically challenged or disable, he/she will automatically be considered as an unreserved candidate and eligibility will follow as per norm. They SHOULD NOT therefore, submit along with the application form any medical certificate to the effect that they are Physically Challenged. But they are advised to keep copy of their Physical Challenged certificate issued from competent authority in examination hall. Provisions for Persons With Disabilities  The candidates with disability should fill in the type and percentage of disability correctly in the online application form for OJEE 2016 (if any field given, otherwise no need).  Only the candidates, who have 40% or more disability, will be provided Scribe/Reader on the request of the candidate.  The candidate will have the discretion of opting his/her own scribe/reader or may submit the request to the centre superintendent for the same.  The centre superintendent will identify the scribe/reader. In case a request is received from the candidate, he/she would be allowed to meet the scribe a day before the examination to verify the suitability of the scribe.  20 minutes/Hour compensatory (extra) time will also be allowed to the candidates with 40% or more disability irrespective of the fact that the candidate(s) is/are availing the facility of scribe/reader.” 22. Pursuant to the conditions stipulated in the brochure, a medical board has been constituted under the Chairmanship of Principal SCB Medical College and his nominee, comprising of experts in the subject itself and the board shall satisfy the disability sustained by the candidate and on that basis they have been given admission into the course in respect of the reserved seats available for physically challenged candidates in different courses. Therefore, the certificate granted under Rule 4 may not have any application 17 to the present context as the certificate in question has been granted under Rule 6 of the said Rules read with the brochure issued by the competent authority. The eligibility criteria for medical counseling provided under Annexure-1 to the writ petition, which was issued to all the candidates, therein clause-viii clearly states as follows:- “Document issued by PC board (Candidates interested to avail Physical Challenged category quota, must appear medical board on declared date at SCB Medical College, Cuttack. Report from Medical board is final and binding on candidates for getting PC quota seat and no other kind of documents is acceptable.)” 23. In view of such position, the petitioner appeared before the medical board on 25.08.2016 at SCB Medical college, Cuttack and after examining it was found that she has suffered disability upto 10 percent, which is quite below the fixed percentage of 40. Consequentially, she is not eligible to be considered for admission under physically handicapped category into MBBS/BDS course for the session 2016. Such report of the medical board was submitted to OJEE on 27.08.2016 enclosing the percentage of disability of the petitioner, as she has not suffered disability more than 40 percent, for which in the final merit list the petitioner was not eligible to be considered for physically handicapped category. 18 After receiving the report from the board, merit list of physically handicapped category was published in the website for information to eligible and ineligible candidates under the physically handicapped category in which the petitioner’s name does not find place. In view of such position, the petitioner cannot claim that she is eligible to get a seat under the physically handicapped category, as the report submitted by the medical board is final and binding for all the candidates as per the conditions stipulated in the brochure. 24. Similar question had come up for consideration before the apex Court in the case of Chairman, Odisha Joint Entrance Examination v. Jasobanta Nayak and others, (Civil Appeal Nos.288-289 of 2016, arising out of S.L.P.(C) Nos.33583-33584 of 2012, disposed of on 18.01.2016). In paragraph-8 of the said judgment, the apex Court held as follows: “It needs no special emphasis to state that the percentage of disability has to be determined by the Medical Board, which is specifically mentioned in the prospectus. The said Board consisting of Dean & Principal, S.C.B. Medical College, Cuttack, and two Assistant Professors, Department of Opthalmology, S.C.B. Medical College, Cuttack, has assessed the disability of vision of the respondent No.1 on 16th June, 2012, at 20% and issued the certificate. Be it noted, the certificate granted by the District Head Quarter Hospital, Balasore, was 40%. A Court cannot assess the percentage of disability. As per the prospectus, the Medical Board has to be 19 constituted consisting of senior Professors of the S.C.B. Medical College, Cuttack and Chairman, OJEE- 2012 or his representative under the Chairmanship of Principal, S.C.B. Medical College or his nominee. The Medical Board has been constituted as per the norms of prospectus and it has clearly recorded its opinion as regards the disability of vision of the respondent. In such a situation, we are constrained to hold that the High Court was not justified in interfering with the selection process in exercise of writ jurisdiction and declaring the disability of the respondent No.1 at 40% and to consider his case in the category of physically handicapped persons. .The approach being erroneous, the order is wholly untenable.” 25. The reliance placed on the judgment of the apex Court in the case of Kunal Singh (supra) is only applicable in the case of employment as mentioned in Chapter-VI of the Act itself and, as such, the apex Court has considered the meaning of disability vis-à-vis the persons with disabilities as defined in Section 2(h) and 2 (t) of the Act itself. But, the ratio of the said judgment has no application to the present context. 26. In view of the aforesaid facts and circumstances, we are of the considered view that the decision taken by the medical board in consonance with the conditions stipulated in the brochure for finding out the disability of the person concerned is final and, more so, the reliance placed on the certificate issued by the authority on 20 02.04.2011 being of five years back, the same cannot be taken into consideration. But, the petitioner may avail the facilities, concessions and benefits admissible under the said certificate for purposes other than that of admission into the course, which is fully covered by the conditions stipulated in the brochure itself and also the law laid down by the apex Court discussed above. 27. In that view of the matter, we are not inclined to grant the prayers made in this writ application and, accordingly, the same is hereby dismissed. No order to cost. …..…………………..………….. (VINEET SARAN) CHIEF JUSTICE ………………....……………… (DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 25th November, 2016/Ashok/GDS "