Order on Board

Per Ramesh Sinha , Chief Justice

07.09.2023 Heard learned counsel appearing for the parties and perused the documents enclosed along with the writ petition.

2. The present writ petition has been filed by the petitioner with the following prayers:

“A. That, this Hon'ble Court may kindly be pleased to call for the entire records relating to the matter of petitioners for the kind perusal of this Hon'ble Court.

B. That, this Hon'ble Court may kindly do issue in the nature of Writ of Mandamus or any other appropriate Writ and direct the respondent no.3 to consider the candidature of the petitioner in view of the Graduate Medical Education Regulation 1997 as amended in the year 2019 and guide line of the National Testing Agency issued for NEET examination. C. That, this Hon'ble Court may kindly do issue in the nature of Writ of Mandamus or any other appropriate Writ and direct the respondent no.3 and 4 to give admission the petitioner in MBBS Course in Government Quota.

D. Any other relief, which may be suitable in the fact's of the case, may also be granted.”

3. Aggrieved by the inaction on the part of the respondents in not granting admission to the petitioner in the course of MBBS Course, the present writ petition has been filed.

4. Indisputably the petitioner is a differently abled person. Her permanent disability was to the extent of 70 percent as assessed by the District Medical Board vide certificate dated 31.01.2020. The petitioner appeared in the NEET UG 2023 examination and secured qualifying marks. Thereafter, she appeared in online counseling and informed that she is entitled for admission in the MBBS course at respondent No.4-

College in government quota seat under BC/PH Category. Thereafter, as instructed by the respondent No.3, the petitioner appeared before the Chhattisgarh State Medical Board, who on examination, assessed the permanent disability of the petitioner to the extent of 90 percent vide Annexure P/5, dated 19.08.2023. Thereafter, when the petitioner appeared before the respondent No.4-College along with disability certificate dated 19.08.2023 for getting admission in MBBS Course, the counseling committee refused to give admission to the petitioner in the MBBS course stating that the person having 90 percent permanent disability of Lower Limbs so, as per Gazette Notification of India dated 13.05.2019 (Annexure P/9), is not eligible for MBBS course vide Annexure P/8.

5. Be that as it may, the petitioner’s disability was earlier assessed by the District Medical Board, Rajnandgaon to the extent of 70 percent. However, the Chhattisgarh State Medical Board vide its certificate dated 19.08.2023 has assessed the disability of the petitioner to the extent of 90 percent and as such the candidature of the petitioner for admission in the MBBS course was cancelled by the respondent authorities in view of Appendix-H-1 of said notification dated 13.05.2019.

6. The petitioner was refused for admission only on the basis of her disability to the extent of 90 percent. Her candidature would had been considered if her disability comes under 80 percent. Appendix-H-1 of the said notification dated 13.05.2019 clearly held that ‘persons with more than 80 percent disability may also be allowed on case to case basis and their functional competency will be determined with the aid of assistive devices, if it is being used, to see if it is brought below 80 percent and whether they possess sufficient motor ability as required to pursue and complete the course satisfactorily’.

7. Though, in the Medical Colleges, admission should not be given by the High Courts by way of an interim order exercising its writ jurisdiction, however, looking to the facts and circumstances of the instant case, the respondent authorities, in particular, the Chhattisgarh State Medical Board is directed to re-examine the disability part of the petitioner again with the aid of assistive devices as has been stated in Appendix-H-1 of the notification dated 13.05