VIDHI HIMMAT KATARIYA AND OTHERSversusTHE STATE OF GUJARAT AND OTHERS

                          [2019] 12 S.C.R. 821                           821


           VIDHI HIMMAT KATARIYA AND OTHERS                              A
                                  v.
            THE STATE OF GUJARAT AND OTHERS
                 (Writ Petition (C) No. 885 of 2019)
                        OCTOBER 04, 2019                                 B
    [ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
      Education/Educational Institutions:
       Admission – Reservation under Persons with Disability
(PwD) category – For MBBS course academic year 2019-20 –                 C
Petitioners-students denied admission as they were not fulfilling the
requisite criteria as per appendix ‘H’ to Notification dated 4.2.2019
– Writ petition before Supreme Court seeking direction to treat them
eligible for reservation under PwD category and grant admission
in MBBS course – Pleaded that they were not governed by                  D
Notification dated 4.2.2019 as the process of selection had
commenced prior to the date of Notification i.e. on 1.11.2018 –
Held: The relevant date for considering the eligibility criteria would
be the date on which admission is sought – The Notification was
issued and published prior to date of admission – Therefore, the
petitioners-students would be governed by the Notification –             E
Moreover, when the experts in the field have opined against them,
court sitting as an appellate authority against such opinion is not
justified.
      Dismissing the writ petitions, the Court
                                                                         F
      HELD : The essential eligibility criteria as per Appendix
‘H’ is required to be considered at the time when the candidates
were seeking admission in the medical course under PwD
category. Even the candidates seeking admission in PwD quota
are required to appear before the concerned Medical Board at
the time of actually seeking admission and after NEET result is          G
declared. Therefore, the relevant date for considering the
essential eligibility criteria as per Appendix ‘H’ shall be the date
on which the candidates – petitioners sought admission in the
MBBs course under PwD quota. Much prior thereto, notification
dated 4.2.2019 has been issued and published and therefore the
                                                                         H
                                 821
822            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A     respective petitioners shall be governed by notification dated
      04.02.2019. All the expert bodies including the Medical Board,
      Medical Appellate Board and even the Medical Board of AIIMS,
      New Delhi consisting of the experts have opined against the
      petitioners and their cases are considered in light of the relevant
      essential eligibility criteria as mentioned in Appendix ‘H’ – ‘Both
B
      hands intact, with intact sensation, sufficient strength and range
      of motion’. Therefore, when the experts in the field have opined
      against the petitioners, the Court would not be justified in sitting
      over as an appellate authority against the opinion formed by the
      experts, more particularly when there are no allegations of mala
C     fides. [Paras 7 and 8] [828-G-H; 829-A-D]
            CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
      885 of 2018.
            [Under Article 32 of the Constitution of India.]
D           With
            W.P. (C) No. 900/2019 and 1026/2019.
            Govind Jee, Krishna Kumar Singh and Syed Musaib, Advs. for
      the Petitioners.

E           A.K. Sinha, Sr. Adv., Prashant Singh, Vikas Bansal, Deepak Goel,
      R. R. Rajesh, Raj Bahadur Yadav, Gaurav Sharma, Dhawal Mohan,
      Prateek Bhatia, Prassanna Mohan, Aniruddha P. Mayee, A. Rajarajan
      and Sanjeev Kr. Choudhary, Advs. for the Respondents.
            The Judgment of the Court was delivered by
F           M. R. SHAH, J.
             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
G     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
H     reserved category under PwD quota.
         VIDHI HIMMAT KATARIYA AND OTHERS v.                                     823
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

       2. That Section 32 of the Right of Persons with Disabilities Act,         A
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           B
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           C
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’            D
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             E
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     F
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        G
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              H
824             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     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.
B     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.
C
             3.1 It is further submitted by the learned counsel appearing on
      behalf of the petitioners that rules of game cannot be changed midway,
      as per the settled proposition of law. In support of his above submission,
      learned counsel for the petitioners has heavily relied upon the recent
      decision of this Court dated 30.05.2019 in Writ Petition (Civil) No. 55
D
      of 2019, titled Janhit Abhiyan v. Union of India. It is submitted that in
      the said decision, this Court has held that the EWS reservations could
      not be made applicable midway after the selection process for medical
      PG of 2019, which commenced in the month of November, 2018,
      whereas notification reserving EWS quota came in February/March,
E     2019.
             3.2 It is further submitted by the learned counsel appearing on
      behalf of the petitioners that even otherwise the petitioners are eligible
      under Regulations, 2019 also as they fulfil the required percentage
      disability between 40-80%. It is submitted that the minimum percentage
F
      disability to be eligible for availing reservation under PwD is 40%. It is
      submitted that “PwD not eligible for medical course” is stated as per
      the Regulations, 2019 to be beyond and in excess of 80%, which is not
      the case in hand. It is submitted that the relevant provisions of
      Regulations, 2019 – “Both hands intact, with intact sensation, sufficient
G     strength and range of motion are essential to be considered” has been
      applied by the State Government to non-suit the petitioners for medical
      course in an arbitrary manner and without application of mind. It is
      submitted that while rejecting the petitioners to be not eligible for medical
      course, the State Government has not at all considered the fact that
H     PwD is bound to have certain problems including the parameters
         VIDHI HIMMAT KATARIYA AND OTHERS v.                                   825
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

mentioned in Appendix ‘H’ [Both hands intact, with intact sensation,           A
sufficient strength and range of motion are essential to be considered]
with clause (f) of Clause 4(1) of the Regulations, 2019.
       3.3 It is further submitted by the learned counsel appearing on
behalf of the petitioners that while applying the parameters mentioned
in Appendix ‘H’ with clause (f) of Clause 4(1) of Regulations, 2019            B
[Both hands intact, with intact sensation, sufficient strength and range
of motion are essential to be considered], the State Government did
not consider the facts that, petitioner no.1 has good muscle power, does
gripping and activities of daily living with modifications; petitioner no.3
is right side dominant and his right hand is perfectly fine; the range of      C
motion in left hand is not nil, rather restricted, does activities of daily
living with little difficulty and the affected (left) hand has good muscle
power as well; petitioner in Writ Petition (C) No. 900 of 2019 is right
side dominant and his right hand is perfectly fine; affected body part is
left hand only. Left hand has good pinch with modification and does
                                                                               D
daily activities with upper limb right side; petitioner in Writ Petition (C)
No. 1026 of 2019 is left side dominant and his left hand is perfectly
fine; affected body part is right hand only.
       3.4 Making the above submissions, it is prayed to allow the
present petitions and direct the respondents to consider the case of the
                                                                               E
petitioners for admission in MBBS Course in the PwD quota as per
merit.
       4. The present petitions are vehemently opposed by Shri
Aniruddha P. Mayee, learned Advocate appearing for the State of
Gujarat. It is vehemently submitted by the learned counsel appearing           F
on behalf of the State that the respective petitioners are not fulfilling
the criteria as per notification dated 04.02.2019. It is submitted that the
case of the respective petitioners was considered not only by the
Medical Board but by the Medical Appellate Board also and experts
have specifically opined that the respective petitioners are not eligible
for admission in MBBS course under PwD quota. It is submitted that             G
even subsequently also the petitioners were examined by the Medical
Board of AIIMS, New Delhi and even the Medical Board of AIIMS
has also opined against the petitioners and has opined that the respective
petitioners are not eligible for admission in medical course under PwD
quota. It is submitted that when the experts have opined that the              H
826             SUPREME COURT REPORTS                           [2019] 12 S.C.R.


A     respective petitioners are not eligible for admission in medical course
      as they do not fulfil the requisite eligibility criteria as per Regulations,
      2019, they are rightly denied admission in medical course under PwD
      quota.
             5. The present petitions are also vehemently opposed by learned
B     counsel appearing on behalf of the Medical Council of India. A detailed
      reply affidavit has been filed on behalf of Board of Governors in
      supersession of the Medical Council of India. It is submitted that MCI
      while dealing with the issue of persons with disability had formed an
      independent Expert Committee comprising of eminent doctors in various
      specialities. It is submitted that the amendments made in the Graduate
C
      Medical Regulations, 1997 vide MCI notification dated 04.02.2019 are
      in accordance with the report/recommendations furnished by an
      independent Expert Committee headed by the Director, AIIMS, New
      Delhi.
             5.1 It is further submitted by the learned counsel appearing on
D
      behalf of Board of Governors that a medical student pursuing MBBS
      course after becoming a doctor will be treating humans and it is very
      essential that a student is able to acquire the necessary skill and
      expertise during the MBBS course. It is submitted that Regulation 4(3)
      has been substituted in the Graduate Medical Education Regulations,
E     1997 vide MCI notification dated 04.02.2019, whereby it is provided
      that 5% of the seats shall be reserved for “persons with benchmark
      disability” as specified under the 2016 Act. It is submitted that the
      substituted Regulation 4(3) further provides that the specified disability
      given in the Schedule to 2016 Act is adopted and incorporated in
      Appendix ‘H’ to the Regulations. It is submitted that it further provides
F     that the eligibility of the persons with specified disability to pursue course
      in medicine has to be dealt with in accordance with Appendix ‘H’ –
      Guidelines regarding admission of students with “Specified Disabilities”
      under the 2016 Act with respect to admission in MBBS course.
             5.2 It is further submitted by the learned counsel appearing on
G     behalf of the Board of Governors that Appendix ‘H’ in the MCI
      notification dated 04.02.2019, inter alia, provides that the persons with
      locomotor disability of less than 40% are eligible to pursue MBBS course
      but are not eligible to be granted the benefit of reservation under PwD
      quota. It is submitted therefore that when the respective petitioners
H     do not fulfil the admission criteria as per Appendix ‘H’ to notification
         VIDHI HIMMAT KATARIYA AND OTHERS v.                                 827
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

dated 04.02.2019 and even all the expert bodies – Medical Board,             A
Medical Appellate Board and even the Medical Board of AIIMS, New
Delhi have opined that the respective petitioners are not eligible for
admission in MBBS course, the respective petitioners are rightly denied
admission in the MBBS course under PwD quota.
       5.3 Now so far as the submission on behalf of the petitioners         B
that notification dated 04.02.2019 shall not be applicable and the
erstwhile Regulations shall be applicable and the relevant date should
be the date on which the process for admission has started, i.e., in the
month of November, 2018, it is vehemently submitted that the relevant
date for eligibility criteria would be the date on which the petitioners
were to get admission. It is submitted therefore that the date on which      C
the petitioners applied for admission in medical course under PwD quota
and appeared before the Medical Board, that should be the relevant
date and the notification came into force on 04.02.2019, the same shall
be applicable.
      5.4 Making the above submissions, it is prayed to dismiss the          D
present writ petitions.
       6. We have heard the learned counsel for the respective parties
at length.
       6.1 The respective petitioners are suffering from locomotor           E
disability and they are seeking admission in the MBBS course under
PwD category. As per notification dated 04.02.2019 and Appendix ‘H’
– Guidelines regarding admission of students with ‘Specified Disabilities’
under the 2016 Act with respect to admission in MBBS course, a
candidate suffering from locomotor disability of less than 40% shall be
eligible to pursue MBBS course but not eligible to be granted the benefit    F
of reservation under PwD quota. It further provides that ‘both hands
intact, with intact sensation, sufficient strength and range of motion’
are essential to be considered eligible for medical course. As per the
opinion of the Medical Board, Medical Appellate Board and even the
Medical Board of AIIMS, New Delhi, the respective petitioners are            G
not eligible for admission in MBBS course under PwD quota as they
do not fulfil the essential criteria to be fulfilled as per Appendix ‘H’.
Therefore, as such, the respective petitioners are not fulfilling the
essential eligibility criteria provided as per Appendix ‘H’ and therefore
they are not eligible for admission in the medical course under PwD
quota.                                                                       H
828            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A            7. It is mainly contended on behalf of the petitioners and it is
      submitted by the learned counsel appearing on behalf of the petitioners
      that the NEET UG 2019 brochure was released on 01.11.2018 and the
      notification amending Regulations, 1997 whereby Appendix ‘H’ is added
      to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the
      case of the petitioners are required to be considered as per the
B
      provisions prior to 04.02.2019 and more particularly prevailing as on
      01.11.2018. The aforesaid has no substance. The relevant essential
      eligibility criteria is required to be considered when the petitioners were
      to get admission in the MBBS course under PwD quota. It is required
      to be noted and so stated in the reply affidavit filed on behalf of the
C     MCI that the Expert Committee submitted the report – “Guidelines for
      admission of persons with Specified Disabilities”, which was placed
      before the Executive Committee of the Council in its meeting held on
      5.6.2018 wherein after due discussion and deliberations it was decided
      to approve the same. It was also decided that the said Expert
D     Committee Report should be communicated to the Ministry of Health
      & Family Welfare in view of the schedule for counselling for admission
      to MBBS course for the academic year 2018-19. However, for
      admission for the academic year 2018-19, it was at the stage of a draft
      notification and the Graduate Medical Education Regulations, 1997 were
      not amended in light of the recommendations of the Expert Committee
E     constituted by the MCI which has issued the Disability Guidelines, this
      Court directed to give admission as per the unamended Graduate
      Medical Education Regulations, 1997. However subsequently and
      before the admission for the academic year 2019-20 are given,
      notification dated 04.02.2019 has been published and the Graduate
F     Medical Education Regulations, 1997 have been amended, as above.
      Therefore, in the facts and circumstances of the case, it cannot be said
      that ‘Rules of the game are changed midway’, as sought to be
      contended on behalf of the petitioners. As observed hereinabove, the
      essential eligibility criteria as per Appendix ‘H’ is required to be
      considered at the time when the candidates were seeking admission in
G
      the medical course under PwD category. It is also required to be noted
      that even the candidates seeking admission in PwD quota are required
      to appear before the concerned Medical Board at the time of actually
      seeking admission and after NEET result is declared. Therefore, the
      relevant date for considering the essential eligibility criteria as per
H     Appendix ‘H’ shall be the date on which the candidates – petitioners
         VIDHI HIMMAT KATARIYA AND OTHERS v.                                   829
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

sought admission in the MBBs course under PwD quota. Much prior                A
thereto, notification dated 4.2.2019 has been issued and published and
therefore the respective petitioners shall be governed by notification
dated 04.02.2019.
       8. Now so far as the submission on behalf of the petitioners that
while denying admission to the petitioners the State Government and/           B
or authorities have not considered the relevant parameters and have
not considered that the respective petitioners are able to perform well
is concerned, it is required to be noted that in the present case all the
expert bodies including the Medical Board, Medical Appellate Board
and even the Medical Board of AIIMS, New Delhi consisting of the
                                                                               C
experts have opined against the petitioners and their cases are
considered in light of the relevant essential eligibility criteria as
mentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation,
sufficient strength and range of motion’. Therefore, when the experts
in the field have opined against the petitioners, the Court would not be
justified in sitting over as an appellate authority against the opinion        D
formed by the experts – in the present case, the Medical Board, Medical
Appellate Board and the Medical Board of AIIMS, New Delhi, more
particularly when there are no allegations of mala fides.
       9. In view of the above and for the reasons stated above, the
present petitioners are not entitled to the reliefs as prayed. Hence, all      E
the writ petitions filed under Article 32 of the Constitution of India
deserve to be dismissed and are accordingly dismissed. However, in
the facts and circumstances of the case, there shall be no order as to
costs.
                                                                               F
Kalpana K. Tripathy                                      Petitions dismissed




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