HC Allows MBBS Aspirant with 80 perecent Locomotor Disability to Undergo Re-assessment
Madras High Court
Madurai: Granting interim relief to an aspirant suffering from 80% locomotor disability, who was declared ineligible to pursue an MBBS course, the Madurai Bench of the Madras High Court has directed him to undergo reassessment.
Earlier, citing the National Medical Commission's (NMC) guidelines, a medical board by the Rajiv Gandhi Government General Hospital had declared her ineligible. However, following the High Court's order, she would undergo assessment again at JIPMER.
In this regard, the HC bench has issued directions to the Director of JIPMER while adding that "The Director, JIPMER, at the time of constituting a Disability Assessment Board, shall include as a member of the Board, a Doctor or a health professional in the PwD category, as directed by the Director General of Health and Services on 24.03.2022."
The petitioner, who is suffering from benchmark locomotor disability, obtained a certificate from the Government of Tamil Nadu as well as from Union of India showing that she was suffering from 80% disability. She had a registered UDID card and a certificate of disability given by the Department of Social Justice and Empowerment of the Government of Tamil Nadu to substantiate this position.
However, after clearing the NEET examination, when the petitioner appeared before a Medical Board constituted by Rajiv Gandhi Government General Hospital, the Board after conducting the assessment decided that the petitioner was suffering from 70% disability and also held that she was ineligible to pursue MBBS course as per the criteria fixed by NMC.
Aggrieved by this, the petitioner approached the High Court bench. The petitioner's counsel argued that she had been illegally declared as ineligible. Relying on the Kerala High Court order in the case of Aswathy P Vs Union of India, the counsel urged that the assessment that was done by RGGH fell short of the requirements that had been declared by the Supreme Court and Kerala High Court.
On the other hand, the counsel for NMC relied on the judgment of the Supreme Court in Vidhi Himmat Katariya and others Vs. State of Gujarat and others to urge that the Court should not sit as a Court of appeal over the opinion of an expert body, which found the petitioner ineligible on medical grounds.
Meanwhile, the counsel for the regional medical board pointed out that RGGH implements two orders, at the time of examination of a PwD candidate- the first one being the notification issued by the Ministry of Social Justice and Empowerment dated 04.01.2018 and the second being the guidelines issued by the National Medical Commission in the year 2019. She also submitted that unless and until a candidate satisfied both the requirements, the Regional Medical Board would not be in a position to certify a person to be eligible.
However, while considering the matter, the HC bench relied on the Supreme Court order in the case of Omkar Ramchandra Gond Vs. Union of India, where the Apex Court "declared that pending creation of an appellate body, the decisions of the Disability Assessment Board will be amenable to challenge in a writ proceeding. It further directed that in matters, which are currently pending, the candidate should be referred to any premier medical institute having the facility for an independent opinion and relief could be granted to the candidate on the basis of the opinion of the said medical institution."
The High Court bench highlighted that the judgment in Vidhi Himmat Katariya's case consists of three Honourable Judges in the Supreme Court and so does the Bench, which declared law in Omkar Ramchandra Gond.
"There is no conflict within the two judgments for me to choose between one or the other, following the law of precedents. In the first case, the Supreme Court directed that the Court must not take upon itself a role of assessing the disability. No one can take a different view. A Court is neither qualified nor competent to sit on appeal over the decision of a Medical Board. The way out has been pointed out in the judgment in Omkar Ramchandra Gond. It held that a Writ Court has the power to refer the case of the candidate to any other premier medical institute having the facility for assessment. If the report of the second Medical Board goes in favour of the PwD, then this Court can always take a call as to which report must be accepted. Therefore, being in a position to harmonize the two judgments, I would apply the recent view taken in Omkar Ramchandra Gond," it noted.
"Hence, I am inclined to direct the Director, JIPMER, a premier medical institution, to examine the writ petitioner in terms of the applicable guidelines issued by the Department of Social Justice and Empowerment as well as the Graduate Medical Admissions Regulations issued by the fourth respondent/National Medical Commission. The Director, JIPMER, at the time of constituting a Disability Assessment Board, shall include as a member of the Board, a Doctor or a health professional in the PwD category, as directed by the Director General of Health and Services on 24.03.2022," it further observed.
Addressing the fear of the counsel of the regional medical board that referring the candidate to JIPMER might be construed as a slur on the reputation of the RGGH, the Court termed it as "misplaced" and added, "The candidate is being referred to JIPMER on account of the view that had been declared by the Supreme Court in Om Rathod's case. It is only to avoid any allegation of confirmation bias that will be raised by the writ petitioner at a later stage."
Accordingly, the Court ordered the following:
(a) The Director of JIPMER shall constitute a Medical Board and inform the petitioner to appear before it within a period of four (4) weeks from the date of receipt of a copy of this order.
(b) The Disability Assessment Board so constituted shall submit its report to this Court within a period of four weeks thereafter.
(c) At the time of examination, the Assessment Board shall eschew from the benchmark model and shall positively record whether the disability of the writ petitioner will or will not come in the way of the candidate pursuing the medical course.
(d) In case the Disability Assessment Board comes to a conclusion that the candidate is not eligible, it shall specifically state the reasons as to why it is coming to the said conclusion.
(e) The petitioner can communicate the order to JIPMER using the good offices of the Deputy Solicitor General of India, Madurai Bench of Madras High Court.
To view the order, click on the link below:
Also Read: Supreme Court relief to disabled MBBS aspirant, supernumerary seat to be created
