NEET-PG : Supreme Court Protects Provisional Allotment To Visually Impaired Candidate; Allows Him To Participate In Ongoing Counselling
[NEET-PG]Supreme Court Permits Visually Impaired Candidate To Participate In Ongoing Counselling Process; Directs To Not Disturb Provisional Allotment
story
The Supreme Court on Friday directed that pending further orders, the provisional allotment of seat in the MD Psychiatry course at Topiwala National Medical College, Mumbai to a doctor with 100% visual impairment in both eyes shall not be disturbed to his detriment and that he would be permitted to participate in the ongoing process of counselling of NEET for Post Graduate Medical Courses....
Your free access to Live Law has expired
Please Subscribe for unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments, Ad Free Version, Petition Copies, Judgement/Order Copies.
The Supreme Court on Friday directed that pending further orders, the provisional allotment of seat in the MD Psychiatry course at Topiwala National Medical College, Mumbai to a doctor with 100% visual impairment in both eyes shall not be disturbed to his detriment and that he would be permitted to participate in the ongoing process of counselling of NEET for Post Graduate Medical Courses.
The bench of Justices D. Y. Chandrachud and Surya Kant was hearing an SLP against the February 2 decision of the Bombay High Court refusing the prayer for interim orders made by the petitioner and others that they be admitted to the PG medical courses under the quota meant for persons with disability. The Petitioners before the High Court are specially challenged students desirous of obtaining seats in the Post Graduate medical courses. 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.
The Petitioners before the High Court were challenging Postgraduate Medical Education Regulations (Amendment) 2019 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.
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.
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.
The SLP Petitioner completed his M.B.B.S. course, not through the quota meant for persons with disability. He 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.
On Friday, the bench of Justices Chandrachud and Surya Kant was informed by the advocates for the SLP petitioner that MD Psychiatry is a non-surgical course and that others have already been given admission.
Issuing notice on the SLP, the bench passed the following order- "Pending further orders, the provisional allotment of a seat to the petitioner in the MD Psychiatry course at Topiwala National Medical College, Mumbai shall not be disturbed to his detriment and the petitioner would be permitted to participate in the ongoing process of counselling"
As recorded in the impugned decision of the High Court, 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 Act. 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.
The High Court, on February 2, had expressed the following view- "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"
"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 High Court had observed.
Further, the High Court Division Bench had been of the opinion that 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"
"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 the Act of 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 Act of 2016, there is a difference between the phraseology used in Sections 32 and 33 of the Act of 2016, and they operate in different fields. The argument of the Petitioners that the Regulations of 2019 are ultra vires the Act of 2016 has no merit as this concept does not apply to the different legislations", said the High Court.
Besides, the High Court held, "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"
As regards the argument of difference between surgical and non-surgical courses, the High Court noted that when Petitioner (SLP petitioner) 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. The High Court noted that 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"', the High Court concluded.
"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. 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. 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. Interim Application No. (...) for amendment is allowed. Amendment to be carried out within a week. All office objections in the Petitions be removed within two weeks", the High Court had directed.
Case Title: Iyer Seetharaman Venugopalan v. Union Of India & Ors.
Click Here To Read/Download Order