The Medical Council of India (MCI) has the authority to distinguish between various persons with disabilities for the purpose of admission in MBBS course and such determination by the MCI shall not be in conflict with the provisions of the Right of Persons with Disabilities Act, 2016.

JUDGMENT :

Mohammad Rafiq, J.

1. This writ petition has been filed by Manohar Lal Swami inter alia with the prayer that the petitioner be declared entitled to the benefit of reservation under the disability quota in terms of Section 32 of the Right of Persons with Disabilities Act, 2016 (for short 'the Act of 2016')- Further prayer has been made that the Regulation on Graduate Medical Education (Amendment), 2019 with Appendix "H" promulgated vide notification dated 04.02.2019 whereby benefits of locomotive disabilities has only been extended to lower limb, be declared ultra vires the Section 36 of the Act of 2016 as also Articles 14 and 21 of the Constitution of India and the respondents be directed to admit the petitioner in MBBS Course under the disability category from the date other candidates were so admitted.

2. The petitioner is a specially abled person having congenital left upper limb disability. The petitioner does not have the left thumb. Department of Medical and Health, Government of Rajasthan has issued a disability certificate (Form IV) to the petitioner certifying that the petitioner has permanent disability of 40%. The petitioner participated in the NEET Examination in the category of OBC (NCL) with further sub category of PWD placed under physically handicapped-2 category. The petitioner was placed at rank 179 in physically handicapped category and his All India Rank was 155159. The petitioner participated in the counseling but his candidature was rejected on the ground that due to absence of left thumb, he is not eligible for admission to medical course. The respondents in taking that decision relied upon the notification dated 04.02.2019 and Appendix H supra, which provided that the physically disability of a candidate categorized as locomotive disability compulsorily requires, "Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course." The said notification was reiterated by Medical Council of India vide notification dated 13.05.2019 implying thereby that a candidate, with upper limb disability or upper limb deformity, is not eligible to pursue MBBS course. According to the respondents, it is essential that the candidate should have both hand intact with due sensation in both the hands.

3. Mr. Sandeep Singh Shekhawat, learned counsel for the petitioner argued that the aforesaid provision is contrary to the Act of 2016. Reference in particular has been made to definition "person with disability" under Section 2(s) of the Act of 2016. It is argued that the impugned provision is contrary to Sections 32 and 33 of the Act of 2016 as no such differentiation in the persons suffering from locomotive disability can be made. Learned counsel relied upon the judgment of Gujarat High Court in Dr. Deval R. Mehta Vs. Union of India & Others, AIR 2011 Guj 33 and argued that the Gujarat High Court by the aforesaid judgment declared the regulations ultra vires to the Constitution of India but the Supreme Court vide order dated 18.07.2011 stayed the operation of the judgment of the Gujarat High Court and directed that this will not disturb the direction of the High Court that the respondent-writ petitioner should be permitted to continue his studies. Subsequently, the Supreme Court vide order dated 23.04.2018 dismissed the SLP and the Civil Appeal as having become in-fructuous. Reference is also made to the order dated 19.12.2018 passed by the Division Bench of this Court at Principal Seat at Jodhpur in Ms. Geetika Tan war Vs. State of Rajasthan & Others (D.B. Civil Writ Petition No. 15318/2017) in which case the petitioner having deformity in upper limb appeared in NEET 2017 wherein 5% seats were reserved for physically handicapped persons. The Division Bench of this Court while issuing notices of the writ petition directed the respondent-State to subject the petitioner therein to medical examination to assess her disability and thereafter cons