S. J. MUKHOPADHAYA, C. J.

1. THE writ petition was preferred by petitioner to set aside the decision of the 6th respondent refusing admission to the petitioner for the post-graduate medical course under the physically handicapped category. Further prayer was made to declare Rule 5.0 of the Rules and Regulations for Admissions in Post Graduate Degree and Diploma Medical Courses as ultravires the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Disabilities Act') for short) to the extent the same mandate that the upper limbs shall be normal and that the locomotory disability in the lower limbs must be between 50% to 70%. By a petition for amendment, the petitioner has also challenged the Notification dated 25.03.2009 introducing amendment in clause 9(1)(a) to the Postgraduate Medical Education Regulations, 2000.

2. THE petitioner was born on 02.12.1984, had a critical fall on 11.06.1985 and suffered a head injury; which was diagnosed as right sided hemiparesis at level C4-C5 of the vertebrae. The effect was muscular weakness of both the right upper limb and the right lower limb resulting in decreased grip and wasting of muscles on the right side. The petitioner on diagnosis has been declared as physically disabled having 50% permanent physical impairment.

According to the petitioner, after passing XII Std. Board Examination in Science Stream from ICSE Board, he was granted admission on 28.12.2002 to the M.B.B.S. course with the Surat Municipal Institution of Medical Education and Research (SMIMER) in the physically handicapped category. He cleared his M.B.B.S. along with one year compulsory rotatory internship in March 2009. On 20.05.2009, the petitioner was given the general registration No. G- 42048 by the Gujarat Medical Council and was conferred the M.B.B.S. degree by Veer Narmad South Gujarat University on 26.02.2010. The renewed disability certificate was issued on 18.11.2009 certifying that the petitioner is physically disabled and having 50% permanent physical impairment. The petitioner appeared in the examination on 29.01.2010 conducted by P.G. Medical Education Committee, Saurashtra University, seeking admission to P.G. Medical course and had qualified 'in the open merit/physically handicapped category. 07.04.2010 was the date fixed for counselling by the, Saurashtra University ana three seats were reserved for physically handicapped category. There were only three candidates, who had sought admission in the physically handicapped category and the petitioner, being the tone outsider having done graduation from another University, was placed at Sr.No.3 in the said list of physically handicapped candidates. The first candidate refused to opt for taking any seat and the second physically handicapped category candidate opted for MDTB and Chest course and therefore the petitioner had the option of selection from any of the options reserved for the remaining two seats of the physically handicapped category.

3. ACCORDING to petitioner the P.G. Medical Admission Committee after going through disability certificate of the petitioner concluded that the petitioner having 50% disability of upper limb is not eligible for admission against reserved seats of physically handicapped persons in view of guidelines of the Medical Council of India (hereinafter referred to as 'the M.C.I.' for short).

4. THE petitioner appealed to the Vice Chancellor of the 6th respondent University and also lodged his grievance with the State Commissioner for Disabled Persons on 09.04.'2010. After hearing the parties on 23.04.2010, the State Commissioner requested the 6th respondent University to consider the petitioner's case sympathetically, but the 6th respondent University after seeking guidelines from the 3rd respondent M.C.I, and having not taken any decision, the petitioner moved before this Hon'ble Court as second counselling was to start