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Vidhi Himmat Katariya and Ors. v. The State of Gujarat and Ors.

Abhiniti Vats and Hritika Jannawar, Nyayshastram

Background

India is the signatory to the UN’s convention on the rights of the Persons with Disabilities (PWD)(UNCRPD) which promotes the adoption of a rights-based approach for the PWD instead of a charity-based approach. India has ratified this convention in 2007 and to implement its objectives has enacted ‘The Rights of Persons with Disabilities (RPwD) Act, 2016’. The Act encompasses all the provisions to provide equal opportunities to the PWD.


The regulations for the eligibility for the Medical Courses i.e., Regulations on Graduate Medical Education, 1977 are framed by the Medical Council of India (MCI) under MCI Act, 1955 and they have statutory force as held by SC in Purswami Ashutosh (Minor) Through Dr. Kamlesh Virunmal Purswami v. UOI[1].


Over the years there have been various changes in these regulations. A few main amendments made are discussed below.

  • As per the notification of 25th March 2009, Section 4(3) was added in the regulation of 1977 which ala 3% reservation in higher education courses to the persons with locomotory disability of lower limbs between 50-70%.

  • This regulation was later substituted by the 2017 amendment, which was notified by MCI (Medical Council of India) ON 22nd January 2018, entitled every person with benchmark disability (as defined in sec 2(r) of RPWD Act) to the reservation of 5% in higher education courses.

The Regulations were further amended and notified on 4th February 2019 (First Amendment Regulations of 2019), the 4(3) as substituted referred to Appendix H which gives the tabular statement for the persons concerning locomotory disability and their eligibility to medical Course. Regulations indicated that persons less than 40% or more than 80% are not eligible for medical courses, persons eligible are only within 40-80%. Further subjects few conditions for eligibility, relevant for the present case is-

“Both hands intact, with intact sensations, sufficient strength, and range of motion are essential to be considered eligible for a medical course.”

In the present case, the question of a dispute is which regulation is applicable for the case of Petitioner i.e., of 2018 or 2019.


Introduction

The Petitioner’s in the present case has prayed to the Hon'ble Court that they would be granted admission in MBBS course for the academic session of 2019-2020, it is the case of the petitioner that the application process commenced on 1st November 2018, admit card was released on 5th May 2019 and the date of result declaration of NEET-UG was 5th June 2019 and in the meantime, the Regulations of Graduate Medical Education, 1977 were amended on 4th February 2019. As per the protocol to get admitted under the PWD category for MBBS, the Petitioners appeared before the Medical Board who declared them non-eligible considering Appendix H of the 2019 amendment, later they approached the Appellate Medical Board upheld the opinion of the previous Board. Hence, the Petitioner has approached the Supreme Court under Article 32 to seek the aforesaid relief. The Court ruled in the favor of the state, stating that the Court would not be justified to overrule the opinion formed by the medical experts.


Analysis

The two major issues discussed in the said judgment are:

1. When does the admission process under the PWD category initiates?

2. Medical Board's opinion.


1. When does the admission process under the PWD category initiates?

Petitioner contends that the rules of the game cannot be changed midway, and hence the amended regulation of 2019 is not applicable for the admission of the academic year 2019-2020. That the procedure for candidates seeking admission in MBBS course under PWD category is that they have to appear before the Medical Board after the NEET results have been declared, the Court deems fit that the actual admission process under PWD reservation starts when they come for medical assessment, therefore that will be the date where the essential criteria of Appendix H shall be considered.


This reasoning of the Court is sound in the sense that

1. when filling application form there is no medical assessment of the candidates, which is essential for admitting themselves to the MBBS course under the ‘PWD category’.

2. The NEET exam is a mere qualifying entrance exam it doesn't initiate the process under PWD reservation as it, tests intelligence and not physical competency. Furthermore, the regulation was amended before the issuance of admit cards or for that matter the actual NEET exam. Amendment in the said regulation was not made abruptly, the work was in the process and this court itself had directed the Committee not to impose it in the academic year 2018-2019 as it was a draft notification and hence was implemented 2019-2020 onwards.


The Court has not said anything on the precedent the petitioner has so staunchly relied on i.e. of Janhit Abhiyan v. UOI[2] but it cannot be ignored that it has been taken out of context the said case deals with the matter which has been pending in the court and regarding the 10% increase in the reservation for EWS in the light of 103rd constitutional amendment, Court deem proper that the reservation can be provided by 103rd amendment if and only if the MCI increases the seats for medical PG course and as this view is tentative the new amendment won’t have any application in an ongoing process, the Court states’

While making the above declaration, we have kept in mind the need to balance the competing claims which balance could be upset by the claim of equity, if the reserved category candidates are allowed to undergo the medical course(s) and in the event, their admission is found to be untenable at a later stage of the present proceedings[3]

In the present case, the new amendment is not a tentative one and has its application in the view of public interest as discussed further, hence it is rightly applicable as they have been notified before the initiation of the process of admission under the PWD category.


2. Medical Boards' opinion.

The Court in the present judgment has strictly stuck to the words on the fine print of law. The petitioner's contention that they are eligible to get admitted in MBBS course as they fulfill all the requisite parameters vides the first amendment of 2019 of the regulations of 1997, as they have a disability in the required degree i.e., between 40-80% has been held to be partially accurate but the remainder of the conditions in the opinion of Medical Boards hasn’t been fulfilling rendering them non-eligible.


The additional requirements applicable in the present case for the locomotory disability are stated as follows

"Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for a medical course."

One can normally understand that why it is essential to consider the sensation or range of motion for a doctor because it is necessarily vital to be able to complete the course.


Eligibility for the persons with upper limbs disability was considered by the Executive Committee of the MCI on 05.07.2001 and it was opined as under:

"Among the locomotory disabled the upper limb should be functional & normal as it is required to elicit signs during clinical examination and finer movements are desired for the conduct of the surgical procedure. Again, the feeling and the sensation are important for clinical diagnosis and the treatment and locomotory disabled involving upper limb should be considered not eligible for admission to the professional medical.”

And the same view was adhered to until 2017.


But we have come a long way from this, as presently the MCI's regulation does provide an opportunity to the persons with upper limb disability but subject to few conditions and it can be seen that these conditions are essential to ensure that the medical profession cannot be compromised at the risk of the patients.


It was held in Union of India v. Devendra Kumar Pant[4], the intention of the Disabilities Act is not to accept reduced standards of efficiency in the performance of functions of a particular post merely because the employee suffers from a disability.


The reasoning applied in the present case is that the strict adherence to the regulations framed by experts in the field; also, in the expert opinion of the Medical Board, Appellate Medical Board, and Medical Board of AIIMS (All India Institutes of Medical Sciences) the petitioners do not fulfil the essential criteria mandated by the Regulations of MCI. Petitioner's contentions of arbitrary application of the regulation to present case have not been entertained, probably for the reason, it fails to hold any merit as all the esteemed medical boards wouldn't be erroneous at the same time. The court has accepted the opinion of the Medical experts and heavily relied upon it and the Court finds it not to justify to dissent as they are the experts of the appellate authority and the Petitioner's also have not imposed allegation of mala fide practice, so there is no reason for a court to believe them to be wrong. The Hon'ble Court is right at its stance as the judges won't have the expertise of everything in the world sometimes it is accurate to be left upon the experts.


When the experts are of the view that certain categories of the person cannot perform the role of a student or a Doctor, then it is well within the powers of the State to restrict them based upon the said opinion. While this Court has got every sympathy for disabled persons, the overwhelming public interest has to be seen, particularly, when such persons cannot perform the role assigned to them.”[5]


Conclusion

The medical profession is of immense responsibility not that any other profession is, but here it deals with a question of life and death of people. The differently-abled people have surely been dealt a bad hand at life and the state through its regulations has also shown efforts to aid them to achieve self-reliance, life with dignity and freedom. However, some things have to be looked out for the interest of the public at large as the medical profession is not field free to cause an error as its consequences might be fatal. The regulations by the experts in the field have been framed with due deliberations taking into view the broader perspective of the Medical profession and executing its duties and responsibilities. This is an issue where mere technicality of the dates of notifications and applicability shouldn’t be dwelled upon extensively as the main objective sought by these regulations are to choose the candidates who are competent to discharge their duty as a Doctor. In the face of this conclusion, it might seem the position of the PWD has not been given enough thought and in the end, their opportunities have been compromised. The root of the whole issue lies in the fact that the harsh truth of competency has to be dealt with by everyone in this life. Although the author has sympathy for these people, the larger interest cannot be ignored for individualistic aspirations.

[1] Purswami Ashutosh (Minor) Through Dr. Kamlesh Virunmal Purswami v. UOI 2018 SCC OnLine 1717 [2] Janhit Abhiyan v. UOI (2019) 10 SCC 27 [3] Ibid. [4] Union of India Vs Devendra Kumar Pant (2009) 14 SCC 546. [5] Deepshikha vs Medical Council of India & Ors (2015) 150 DRJ 387