1. In all three petitions, the Petitioners are challenging Postgraduate Medical Education Regulations (Amendment) 2019 (“Regulations of 2019 / 2019 Regulations”) to amend Postgraduate Medical Education Regulations, 2000 issued vide Notification dated 13 March 2019 issued by the Board of Governors in super-session of the Medical Council of India pursuant to the powers conferred under Section 33 of the Indian Medical Council Act, 1956.
2. The 2019 Regulations have brought about a substantial change regarding the guidelines for admission to students with specified disabilities. A chart appended thereto specifies the types of disabilities and provides for a disability range. A person with a disability of less than 40% is eligible for the medical course but not under the quota meant for persons with disability. Persons with disabilities between 40% to 80% are permitted for medical courses and are eligible under the quota meant for persons with disability. Persons with more than 80% disability are not eligible for medical courses. However, if the disability is brought below 80% with the use of assisted devices, the same can be considered eligible.
3. In respect of visual impairment, the students with visual impairment with less than 40% disability are eligible, and those with visual impairment for more than 40% may be made eligible to pursue PG medical admission subject to the condition that the visual impairment is brought to the level of less than the benchmark 40% with advance low vision aids such as telescopes/magnifier.
4. Regarding the Locomotor disability, the candidate must have both hands intact with intact sensation; sufficient strength and range of motions are essential to be considered eligible for a medical course.
5. Shubham Hiremath, Petitioner in Writ Petition No. 7305 of 2021 and Harshada Hemant Rane, Petitioner in Writ Petition No. 7990 of 2021, fall in the category of Locomotor disability. Dr Iyer Seetharaman Venugopalan, Petitioner in Original Side Writ Petition (L) No. 24214 of 2021, falls within the visual impairment category.
6. The Petitioners are specially challenged students desirous of obtaining seats in the Post Graduate ("PG") medical courses, the admission process of which is currently ongoing. They have been denied an opportunity to apply for seats reserved for students with a physical disability because they do not fall within the parameters laid down in the Postgraduate Medical Education Regulations, 2000 as amended by the Postgraduate Medical Education Regulations (Amendment), 2019.
7. The Division Bench of this Court (Coram: R.D. Dhanuka & Abhay Ahuja, JJ.)has admitted Writ Petition No. 7305 of 2021 by issuing Rule on 18 November 2021. No interim relief was granted. Shubham Hiremath, Petitioner in this petition, approached the Hon’ble Supreme Court and the Supreme Court by order dated 13 December 2021 permitted Petitioner to move this Court for the final hearing of this petition or if it is not possible, to move an application for interim relief. Dr Iyer Seetharaman Venugopalan, Petitioner in Original Side Writ Petition (L) No. 24214 of 2021, has filed Interim Application No. 369 of 2022 to amend the petition. There is no interim application in Writ Petition No. 7990 of 2021 filed by Harshada Hemant Rane.
8. After the Hon’ble Supreme Court has passed the order on 13 December 2021, this Court was having restricted hearing of the matters on video conferencing for limited hours in view of the SOP issued. Dr Iyer, Petitioner in Original Side Writ Petition (L) No. 24214 of 2021, filed an interim application challenging the Regulations of 2019 on 29 January 2022. Shubham Hiremath, Petitioner in Writ Petition No. 7305 of 2021, filed an additional affidavit on 27 January 2022. Respondent No. 6 – National Medical Commission filed its reply sworn in New Delhi on 28 January 2022. By ad-interim protection, we had permitted the Petitioners to participate in the counseling process without reserving or earmarking any seat. As of today, the admission process is going on, and learned Counsel for the Petitioners have submitted that interim orders in their favour granting admission be issued.
9. Learned Counsel for the Respondent – National Medical Commission states that he has had inadequate time to respond to the challenge to the Regulations of 2019. Learned Counsel for the parties also submits that the validity of the 2019 Amendment as regards PG course in respect of persons with disabilities has not been decided by any Court. Considering this position and that now a challenge to the subordinate legislation has been raised and that Rule has already been issued in Writ Petition No. 7305 of 2021, we issue Rule in Writ Petition No. 7990 of 2021 and Original Side Writ Petition (L) No. 24214 of 2021. Both the petitions are to be heard along with Writ Petition No. 7305 of 2021.
10. We have heard learned Counsel for the parties on the prayer for interim relief. The interim protection they seek is that the Petitioners be given seats reserved for students with physical disability pending the hearing of these writ petitions. The Respondent – National Medical Commission, opposes this interim relief.
11. Shubham Hiremath, Petitioner in Writ Petition No. 7305 of 2021, has completed his M.B.B.S. degree from the general category and not from the quota meant for persons with a physical disability. It is the case of this Petitioner that he lost one-third portion of his right-hand thumb along with right-hand index finger in an accident. He had obtained a certificate from a private medical hospital that he has a disability of right hand. This certificate was obtained in the year 2006. This Petitioner was desirous of applying for a seat in the PG medical course. He was examined by the Medical Board, which issued a certificate on 26 October 2021 that in light of Regulations of 2019, the Petitioner is not eligible for admission in medical course. Shubham Hiremath, after filing his petition, requested the Division Bench of this Court to direct that the Petitioner be examined by a Medical Board of J.J. Hospital, Mumbai, on the aspect of his disability in the context of functional abilities. The Division Bench acceded to his request and, by order dated 28 October 2021, directed that the Medical Board of J.J. Hospital will examine Shubham Hiremath in respect of his contentions regarding functional ability and submit a report. The Board examined Shubham Hiremath. The doctors who examined him opined on his functional abilities and issued a report signed by all four Board Members that in light of the Regulations of 2019, this Petitioner was not entitled to be considered for admission to the medical course. This is so because the Petitioner does not have both hands intact with sufficient strength, range of motions and intact sensations.
12. Harshada Rane, Petitioner in Writ Petition No. 7990 of 2021, has upper limb congenital anomaly of left hand Index Middle and ring finger with right-hand involvement certified as 40% disability. This Petitioner had applied for admission in M.B.B.S. course in the year 2011 in the State Merit List under the category 'Persons with Disability. The Petitioner was denied admission, and a Division Bench of this Court issued Rule and by interim order, in the year 2011 directed that the Petitioner be granted admission under the quota for persons with disability and the Petitioner under interim order completed the M.B.B.S. course. Harshada Rane thereafter was appointed as Medical Officer and worked on the said post. The Petitioner was desirous of participating in the current admission process for PG medical seat, and when she applied for a certificate of disability as per the 2019 Regulations, she was given a certificate of having 40% disability and was held not eligible for admission.
13. Dr Iyer Seetharaman Venugopalan, Petitioner in Original Side Writ Petition (L) No. 24214 of 2021, completed his M.B.B.S. course, not through the quota meant for persons with disability. Dr Iyer has 100% visual impairment in both his eyes. A certificate of disability was issued to the Petitioner on 5 October 2021 as per the 2019 Regulations in which it was stated that the Petitioner is not eligible in light of the 2019 Regulations in view of his 100% visual impairment. The Petitioner was also examined by a Committee of the National Medical Commission in the meeting held on 13 January 2022 in a virtual mode where five experts opined that the Petitioner would not be held eligible.
14. Before we turn to the challenge to the 2019 Regulations, we must take note of the pleadings of the Petitioners on this issue. When filed originally, Writ Petition No. 7305 of 2021 sought only prayer to set aside the certificate of disability and declaration that the Petitioner is eligible to pursue a PG medical course. Thereafter, by amendment carried out on 21 December 2021 interim order was sought to stay the report dated 3 November 2021and also, a prayer was sought to be incorporated that the Regulations framed by the National Medical Commission are unreasonable and arbitrary. We may note that this amendment was moved after the Supreme Court passed an order permitting the Petitioner to move for hearing or interim relief on 13 December 2021. The pleadings in support of this challenge to the Regulations are sketchy. The main emphasis in this writ petition is the challenge on functional ability not being considered. The petition, as initially filed by Dr Iyer Seetharaman Venugopalan, did not contain any challenge to the Regulations; also, the Regulations in respect of Graduate courses were annexed. The only prayers that were sought were to set aside the disability certificate and to declare that the Petitioner is eligible for admission. Thereafter, it is only on 29 January 2022 that an interim application is moved to challenge the Regulations by annexing the correct Regulations. As regards the petition filed by Harshada Rane, it does not raise any challenge to the Regulations and seeks only directions to grant admission.
15. This is the state of pleadings of the parties regarding the substantive challenge to the Regulations that have held the Petitioners ineligible for admission to PG medical courses. Therefore, grievance made by the learned Counsel for National Medical Commission that a challenge to the Regulations which will affect all the PG admissions in the Country is raised casually and that he did not adequate time, are justified.
16. The challenge to the 2019 Regulations is primarily on the following main grounds. First, the Regulations of 2019 are arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India. Second, the Regulations of 2019 are contrary to the Rights of Persons with Disabilities Act, 2016; more particularly, Section 3(r) read with Section 32 of the. Third, the Regulations of 2019 do not consider the functional abilities on a case-to-case basis in respect of each of the disciplines. Fourth, the Regulations of 2019 are not backed by any expert input or not based on any recommendations of the expert body to give them deference as a product of expertise.
17. It is sought to be contended by the Petitioners that under Section 3(r) of theof 2016, the persons with benchmark disability have been defined, and the persons with benchmark disability have a right to be considered for a seat reserved in the higher education institute as per Section 32 of theof 2016. It is contended that these two provisions, which constitutes a class on their own, do not admit any exceptions and, therefore, the Medical Council of India by the Regulations of 2019 cannot carve out exceptions as it will defeat the object for providing such reservations to the persons with disabilities. In this context, it was also sought to be argued that the of 2016 contemplates Reasonable Accommodation that is necessary with appropriate modification and adjustments to ensure persons with disabilities enjoy or exercise all rights equally with others. Based on these provisions, it was contended by the Petitioners that the Respondents could provide Reasonable Accommodation, and the Petitioners who intend to practice in non-surgical branches can be given reasonable accommodation. On the aspect of Reasonable Accommodation, the Petitioners have relied upon the observations of the Supreme Court in paragraph 60 of the decision in Vikash Kumar V/s. Union Public Services Commission & Others. (2021) 5 SCC 370 [LQ/SC/2021/91 ;] ">(2021) 5 SCC 370 [LQ/SC/2021/91 ;] [LQ/SC/2021/91 ;] . In the case of Dr Iyer, it was contended that he could have an Assistant in pursuance of his studies and practice in psychiatry and pharmacology. According to the Petitioners, these aspects have not been considered at all.
18. Petitioners further contended that in the meeting held on 25 February 2019, the Board of Governors of the National Medical Commission had recommended that a Committee looks into the eligibility for the specific PG courses for students with various types and degrees of disability could pursue. It is contended that, however, no such Committee looked into these aspects. Shubham Hiremath and Harshada Rane contended that the concept of functional ability must be read into the Regulations of 2019 and the Medical Board appointed by this Court in the case of Shubham Hiremath, the doctors individually opined regarding the functional ability of the Petitioner but only rejected the claim based on Regulations of 2019.
19. These Petitioners contended that under Section 33 of theof 2016, where reservations in government seats are provided, a periodical review is contemplated and accordingly by Notification dated 4 January 2021, a comprehensive report is submitted identifying the courses. The report and a summary thereof are placed on record. It is contended that for the post such as Radiology in which Shubham Hiremath is desirous of pursuing the course, the concept of functional ability has been prescribed, which covers him. It was contended that if it is permitted to occupy a post of Radiologist by a person with physical challenges, then it would be absurd not to permit taking education by a person with the same physical challenges to be qualified to occupy the post. The Petitioners argue that the Regulations of 2019 are, therefore, ultra vires of the or 2016 and Section 33 and report submitted thereunder which has recognized the concept of functional ability be read into the Regulations of 2019.
20. The Petitioners have also relied upon the decision of the Supreme Court in the case of Purswani Ashutosh (Minor) through Dr Kamlesh Virumal Purswani V/s. Union of India & Others. (2019) 14 SCC 422 [LQ/SC/2018/1058] In which the Supreme Court had observed that the Committee should look into the issue. However, it is contended that neither the observations of the Supreme Court nor the recommendations of its own Board of Governors to have a Committee and expert input has been gone into. Reliance was also sought to be placed on an order passed by learned Single Judge of this Court in Writ Petition No. 11 of 2020, (Dr. Rajdeep Deshmukh V/s. State of Maharashtra & Others decided on 30 April 2020) holding that the petitioner therein was eligible for admission in PG medical course in a non-surgical branch.
21. On these grounds, considering that the Petitioners have made out a good strong prima facie case to challenge the Regulations of 2019 and that the Petitioners having been considered for the seats in the ongoing medical admission process they be allotted a seat, is the interim order sought.
22. Learned Counsel for the Respondent – National Medical Commission submitted that the Regulations of 2019 have a statutory force. They have not been declared as invalid by any Court, nor there is any stay granted by any Court. He submitted that the Medical Council of India, which is an expert body in the field of medical education with due consideration, has brought into force the Regulations of 2019 and the Supreme Court in the case of Purswani Ashutosh has in the context of persons with disability itself has observed that the Regulations be given primacy. He submitted that merely because some prayers are made in the petition, to at a belated stage during the hearing of the petitions challenging the Regulations, interim relief cannot be granted since, as of today under the Regulations, the Petitioners are not eligible. He submitted that absolutely no ground is made out for challenging the Regulations. He submitted that the context in which the report is prepared under Section 33 of theof 2016 is entirely different from the matter of reservation in higher education. He submitted that the Respondent – National Medical Commission will file a further affidavit regarding the challenge raised by way of amendments. Learned Counsel submitted interim relief in the form of staying the Regulations will disrupt the entire process of admission and bring about a chaotic situation.
23. Considering the rival contentions on interim relief, we are not inclined to grant the same for the following reasons.
24. First, to grant interim order to give seats to the Petitioners would be an order contrary to the subordinate legislation holding the field as on date. Unless and until this piece of subordinate legislation is set aside or stayed, such relief cannot be granted. It is for this reason by the ad-interim orders passed in January 2022, we have only permitted the Petitioners to participate in the process of counseling and not earmarked any seats, and even that order was with a rider that the Petitioners would not claim any equity. We agree with the learned Counsel for the Respondent – National Medical Commission that if the Regulations of 2019 are stayed, it will have a cascading effect. An order staying the Regulations or quashing the Regulations in the middle of the admission process at this stage would have severe implications on the ongoing distribution of seats and the counseling process. We cannot brush aside the request of the National Medical Commission to grant time to meet the challenge, and take up the matter immediately for final hearing.
25. Even if the argument of the Petitioner for a prima facie case is to be considered, we do not find that it is made out. We note that the Division Bench of this Court Anita Prakash Shinde v. Union of India, 2021 SCC OnLine Bom 257 had an occasion to consider the Regulations of 2019 in respect of admissions to the graduate courses where the Division Bench by order dated 8 February 2021 has repelled the challenge to the Regulations holding that subordinate legislation in the field of higher education based on expert input cannot be interfered with. Though this is a decision in respect of graduate course Regulations, the same criterion is also applicable to the Postgraduate Regulation as regards the ambit of judicial scrutiny, and it cannot be argued that this decision is entirely inapplicable. This decision holds the field to date. The Respondent – National Medical Commission has relied on orders passed by the different High Courts. These are Division Bench of the High Court of Delhi in the cases of Deepshika Vs. MCI & Ors. W. P. (C) No.4218/2014 and in Ravi Chaubey Vs. UOI & Ors. and in W.P. (C) No.4344/2014 Alok Ranjan Vs. National Medical Commission & Ors.-W.P. (C) No.9933/2020. Also, on the decision of the Division Bench of the Rajasthan High Court in Manohar Lal Swami Vs. State of Rajasthan & Ors. Writ Petition No.11241/201. Further, the order dated 28 August 2019 of the Supreme Court in the case of Vidhi Himmat Katariya & Ors. Vs. State of Gujarat & Ors.- W.P.(C) No.885/2019.
26. The Regulations of 2019 make no distinction between surgical and non-surgical branches. The Regulations also do not invoke the concept of functional ability. The Petitioners are trying to read these facets into the Regulations. This would be re-writing the Regulations of 2019, and the implications of re-writing the Regulations and impact of introducing these concepts on the standards of education is left to guesswork, and this Court is not equipped to visualize the consequences thereof. In academic matters, generally, the courts will refrain from interference since the issues fall within the domain of the experts. Regarding the mandatory nature of the Regulations of the Medical Council of India, the Supreme Court in various decisions has emphasized this position. Some of these are Dr Narayan Sharma and Anr. Vs. Dr. Pankaj Lehkar & Ors. (2000) 1 SCC 4 and State of Punjab Vs. Dayanand Medical College. (2001) 8 SCC 664 [LQ/SC/2001/2338] .
27. No legal principle is placed before us by the Petitioners in support of the contention that the concept of functional ability invoked under Section 33 of theof 2016 should be incorporated in the Regulations of 2019. Two concepts from two different legislations cannot be amalgamated in this manner by mere arguments. Even within the of 2016, there is a difference between the phraseology used in Sections 32 and 33 of theof 2016, and they operate in different fields. The argument of the Petitioners that the Regulations of 2019 are ultra vires the of 2016 has no merit as this concept does not apply to the different legislations.
28. The Respondent Commission has the competence to lay down education standards. In the case of Purswani Ashutosh, the Supreme Court has observed in paragraph 21 that the Medical Education Regulations framed under Section 33 of the Indian Medical Council Act, 1956 have statutory force and are binding. Therefore, when the Regulations of 2019 have categorically prescribed certain standards and the Regulations have been framed after prior approval of the Central Government by a body competent to lay down education standards, they cannot be modified or suspended by way of an interim order. The argument of lack of expertise or expert input or no reasons in support overlooks that what is under challenge is not administrative or quasi-judicial order but subordinate legislation.
29. As regards the argument of difference between surgical and non-surgical courses is concerned, it is to be noted that when Petitioner Dr Iyer was examined by the five eminent doctors on 13 January 2022, one of the doctors has emphasized that even for psychiatry observation skills, eye contact and body language are essential parts, and a visual impairment above the limit of 40% will create a problem. Regarding taking help of assistants in the discipline of psychiatry at the time of practice etc., it was also pointed out that this would be a breach of confidentiality. At this stage, it cannot be said that this opinion underscoring the need for visual ability even in the field of psychiatry is an absurd view. Merely because there are certain examples where persons with visual impairment have practiced psychiatry, straight away a direction over-riding the Regulations of 2019 cannot be issued. Such orders will enable all those above 40% visual impairment to be admitted to PG courses irrespective of the Regulations of 2019, creating various complications in the ongoing admission process.
30. Shubham Hiremath’s contention regarding functional ability is concerned, it was the Petitioner's request to be examined on that ground. The Board has rightly referred to the Regulations and observed that the Petitioner is not eligible to be admitted. If the functional ability is not a concept under the Regulations of 2019, the Medical Board could not have granted any certificate in favour of the Petitioner.
31. Harshada Rane completed the course in quota meant for persons with a disability under an order passed by this Court in the year 2011. As rightly pointed out by the learned Counsel for the Respondent – National Medical Commission at that time that neither the of 2016 was in force at that time nor the Amendment Regulations of 2019. As to the final outcome of this writ petition, the same is not placed on record. The work experience sought to be pressed by the learned Counsel for Harshada Rane; it is not of any consequence as what is necessary is eligibility under Amendment Regulations of 2019. Regarding the order dated 30 April 2020 passed by the learned Single Judge Writ Petition No. 11 of 2020, we note that this question of law is not decided. The AGP made a statement on behalf of the State Government that the Petitioner is eligible for admission in the PG course in the non-surgical branch, and the petition was allowed in view of the statement made. It is not explained to us as to how the Learned AGP had the authority to make such a statement when there is no appearance of the National Medical Commission, whose stand would have been most material. We do not intend to say anything more as it may affect the petitioner in that petition who is not before us. All that we say is that this order cannot constitute any binding precedent.
32. Considering this position, we are not inclined to accept the prayer for interim orders made by the Petitioners that they be admitted to the PG medical courses under the quota meant for persons with disability. The Interim relief is refused.
33. Learned Counsel for the Petitioners submit that they would like to take the challenge further and may be given some time for that purpose. Learned Counsel for the Respondent – National Medical Commission submitted that he could not make any statement in that regard.
34. The ad-interim order passed in these petitions on 13 January 2022 is only to permit the Petitioners to participate in the counseling process of NEET for Post Graduate Medical Courses, which has commenced now, subject to further orders to passed in the petition. We had made it clear that if the Petitioners fail in the challenge, they will not claim any equity based on the ad-interim order. It was specifically stated that no ad-interim order reserving or earmarking any seat for the Petitioners was passed. At the request of the learned Counsel for the Petitioners, the same ad-interim order prevalent today is extended for one week from the date this order is uploaded.
35. Interim Application No. 369 of 2022 in W.P. (L) No. 24214 of 2021for amendment is allowed. Amendment to be carried out within a week. All office objections in the Petitions be removed within two weeks.
