Supreme Court Allows Candidate with Muscular Dystrophy to Participate in NEET-UG 2024 Counselling

Court: Supreme Court of India

Bench: Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra

Case Title: OM Rathod Versus The Director General of Health Services and Others 

Case No: SLP(C) No. 21942/2024

Date of Judgement: 25 Oct 2024

Summary

In a landmark judgment, the Supreme Court of India on October 25, 2024, allowed a candidate with muscular dystrophy to participate in the ongoing NEET-UG 2024 counselling. The candidate, who has an 88% disability due to muscular dystrophy, had previously been disqualified from pursuing an MBBS degree under the National Medical Council (NMC) guidelines. These guidelines stipulate that individuals with muscular dystrophy must have a disability level below 80% to qualify for the MBBS course.

The Supreme Court bench, led by Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra, took into consideration an expert report suggesting that the candidate could successfully undertake the MBBS program with the help of assistive devices. The Court’s judgment is a significant moment in recognizing the rights of persons with disabilities in medical education.

Background of the Case

Muscular dystrophy is a progressive disease causing weakening and breakdown of muscles, which restricts physical activity. The petitioner, a NEET-UG 2024 candidate, achieved an impressive score of 601/720 despite the challenges posed by his condition. However, his 88% disability exceeded the threshold set by NMC guidelines, leading to his initial disqualification. The Bombay High Court previously upheld this decision, denying relief to the candidate.

Role of Expert Testimony

In a previous hearing, the Supreme Court invited Dr. Satendra Singh, himself a person with disability, Founder of Infinite Ability and an advocate for medical professionals with disabilities, to provide expert insights. Dr. Singh’s report concluded that, with assistive devices, the candidate could meet the requirements of the MBBS program. While the National Medical Council expressed some concerns over Dr. Singh’s expertise in muscular dystrophy specifically, it did not object to the candidate’s admission.

Justice JB Pardiwala, addressing the NMC’s concerns, advocated for a compassionate view, stating, “There are two reports now, give him a chance!”

Supreme Court's Decision and Observations

The Court’s decision allows the candidate to proceed with NEET-UG 2024 counselling but notes that the order is case-specific and should not be treated as a legal precedent. Chief Justice Chandrachud clarified, "This order is passed in the facts and circumstances of the case of the petitioner and shall not be construed as a concluding express opinion by this Court on the issues of law that may arise in an appropriate case."

The Court further pointed out a gap in the assessment of disability with assistive devices, referencing the Government of India’s Gazette notification (March 2024), which lacks guidelines for disability evaluation in such contexts. This observation may potentially lead to regulatory improvements in assessing persons with disabilities seeking admission to educational and professional courses.

Advocacy for Inclusive Medical Education

The ruling underscores the Supreme Court’s evolving stance on inclusivity in medical education. Recently, the Court had ruled that a benchmark disability should not be a sole disqualification for MBBS admission. This order reinforces the principle that capable students with disabilities deserve equitable opportunities, provided that their needs for assistive support can be reasonably accommodated.

Moving Forward

The Supreme Court’s directive in  highlights the pressing need for inclusive education policies, especially in fields like medicine, where physical challenges often lead to discrimination. This case marks another step towards a more inclusive educational system that acknowledges the potential of individuals with disabilities to contribute meaningfully to society.

This decision resonates with advocates for disability rights, as it reflects the Court’s willingness to adapt legal interpretations in response to technological and social advancements, especially in assistive devices. The judgment has set a powerful example, encouraging policymakers to create more inclusive opportunities for individuals with disabilities in medical and other professional fields. 

This case serves as a reminder that the pursuit of equality is ongoing, with each judgment adding strength to the movement for inclusivity in Indian education and beyond.

Judgement: OM Rathod Versus The Director General of Health Services and Others [SLP(C) No. 21942/2024]

A medical student knocks the doors of Himachal Pradesh high court against accessibility barriers in Medical college

Despite winning her MBBS seat after the High Court's intervention, Ms. Nikita Choudhary, a first-year student of Dr Rajendra Prasad Medical College, Tanda continues to brave ordeals of inaccesssibility at the college campus. Nikita who is also a wheelchair user and has 78% disability, has written to the Chief Justice of the Himachal Pradesh High Court, highlighting various difficulties being faced by her.

Highlighting the absence of accesssible infrastructure for wheelchair users, she has written about absence of ramps in the academic, para-clinic blocks, library and auditorium. The elevators installed in these blocks often go out of order and she has to sometimes miss classes due to that reason.

In the year 2022, she was denied admission  by the college referring to the MCI rules that a student with 78 per cent disability could not be enrolled for the course. But after the intervention by the High Court, she secured her hard earned seat.   In her letter to the Chief Justice, she has stated that since her admission, she has never entered the college library and auditorium. Even the para-clinic and washrooms are also not accessible to her.

Her repeated requests to the engineering staff to repair the elevators have fallen on deaf ears. Even her request for the allotment of cubical accommodation in the college hostel was also denied. She said she needed an attendant to assist her always. It was not possible for her to live in a dormitory without an attendant. Now she had rented a room outside.

As per court order, she said, physically disabled students were entitled to free education up to university level. However, she was forced to pay the admission fee, which had not been refunded to her so far.

A senior officer of the medical college said they were aware of the problems being faced by Nikita. He said, “Lifts sometimes go out of order due to technical glitch or power failures. The college will extend all possible help to her.”

We will keep you posted on this case.... 

Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Chief Justice Dipak Misra, Justice Amitava Roy and Justice AM Khanwilkar 

Case No: Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015)

Case Title: Pranay Kumar Podder Vs. State of Tripura and Others

Date of Judgement: 23 March 2017 and Complianace Order dated  12 Sep 2017

Brief

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, andd fixed the next listing on 11 July 2017 for compliance.

See the judgement dated 23 March 2017 and  compliance Order dated 12 Sep 2017 below:

Judgement dated 23 March 2017:

 

 

Compliance Order dated 12 Sep 2017:

Bombay HC favours aspiring candidates with cerebral palsy for admission to MBBS; Orders re-constitution of Medical Board with 2 Neuro-specialists [Judgement Included]

Dear colleagues,

This petition by two candidates with cerebral palsy who are aspiring to become doctors/ surgeons revolves around three larger questions often faced by many candidates with disabilities aspiring to be doctors:

(a) Whether a person with cerebral palsy can be a doctor?
(b) Whether the 40-70% disability criteria set by MCI for admission to MBBS courses is constitutionally valid ?
(c) Whether  a team of ophthalmologist, a pathologist, an orthopaedic, a general physician and a surgeon can assess the disability of a person with cerebral palsy in absence of a neuro specialist?

The Medical Board set up by State Directorate of Medical Education and Research mechanically assessed the candidates above 70% disability looking at the etiology of their disability i.e. cerebral palsy. The Board did not have neuro-specialists. Hon'ble Bench ordered to re-examine the candidates citing that the Medical Board was not competent to even assess the candidates with cerebral palsy. The court expressed that the Medical Board should include two doctors who have a specialization in neuroscience and asked for re-constitution of the same to assess the disability and to keep two seats vacant for them.  However, it seems the judgement doesn't address the impugned criteria of 40-70% disability!  Another area that is worth our concern is the tendency of authorities to adjust candidates with disabilities in disability quota even when the candidates have scored higher marks in the common entrance test like general candidates. This must be checked at every stage.

It is pertinent to mention that the candidates did not have functional impediment of upper limbs, they had a restriction of the lower limbs while walking. However, since the disability is a result of cerebral palsy, the medical board often indicates all four limbs involved. Same is the case with the List of identified posts by Govt. of India wherein the assessment or identification doesn't highlight the functional abilities as it mechanically goes with categories as One Arm, One Leg, Both Legs. Merely on the basis of slight involvement of limbs the candidates are declared ineligible even where the affected limb hasn't lost its functional competence. (Eg. a person with a deformed feet but with no functional limitation in walking is declared as ineligible for a post not meant for both leg affected candidate.) These inconsistencies in the list of identified jobs and their mechanical implementation by departments is causing more harm than good.

Click here for the Combined Court Order dt 22 Aug 2016 in WP(C) 9299/2016 titled Rajnandinee P. Mane Versus State of Maharashtra and Ors.  ;  WP(C) 9556/2016 titled Rutuja D. Raut Vs. State of Maharashtra and Ors. 

Here is the brief coverage by Times of India of this specific case.

Can a student with cerebral palsy become a doctor?

Girl with Cerebral Palsy gets HC nod to pursue medicine
 

HC Order fail to bring relief to disabled MBBS aspirant this year despite clearing NEET [Judgement Included]

Dear Colleagues,

In the instant case, the Hon'ble Delhi High Court, in a matter of discrimination on the grounds of disability, the petitioner not only failed to get any practical relief while she missed her crucial year of MBBS even after clearing NEET Examination but also the stipulation that only persons up to 70% disability can be considered for MBBS course remained unchallenged. 

Thus in fact, this case can not be used by any other candidate with a disability  to seek admission in MBBS if he has more than 70% disability. The petitioner has to clear the NEET exam all over again next year thereby wasting her crucial year of life which can never be replenished to her. Is it true justice? Were respondent burdened with any cost for this lapse? How can the petitioner with 80% disability be considered next year again under the same rules that debar a candidate above 70%? What is the guarantee that her percentage of disability will not be used by the respondent to once again to deny her the seat even if she has the perseverance to clear the NEET the next year?

Brief of the case. 

The petitioner, Ms. Sanjana Sinha, when she was seventeen, had undergone amputation of her left leg, and got an artificial leg/prosthetic limb fitted, her disability adjudged as 80%. After qualifying NEET examination, she applied to Faculty of Medical Sciences for admission to MBBS course against the seats reserved for persons with disabilities. 

Although initially she found her name in the merit list and rank list, later she was declared not eligible for admission to MBBS due to her disability, which is 80%. The petitioner challenged this through the Writ petition, by contending that with the external aid/prosthetic limb her disability is less than 70%, within the prescribed range. The petitioner did not challenge the rule limiting the eligibility to 70%!

Division Bench comprising of Justices V. Kameswar Rao and Badar Durrez Ahmed observed “A welfare legislation…… needs to be given a purposive interpretation, inasmuch as to give benefit to a person with disability so that he/she don’t feel less privileged than a normal person. Moreover, we find that the petitioner has a brilliant academic carrier and has also qualified the NEET examination but for the disability, she would have got the admission in the course.” 

The Court also observed that having disability of 80% is a more appropriate case to be given benefit of the Act, since with the external aid/prosthetic limb, the disability would come within the range as permissible under the Regulation i.e. between 40/50-70. 

The Court allowed the Writ petition in following terms: “We may only state here that the petitioner was a successful candidate for the academic year starting 2013-2014. At this point of time, no direction can be issued to give admission to the petitioner on the basis of the said examination. The only direction that can be given is, in view of our discussion, the respondent shall not deny admission to the petitioner if she is successful in a future NEET examination on the ground that she has a disability of 80%.”

Download a copy of Judgement:

• W.P.(C) 6041/2013  Sanjana Sinha Versus University of Delhi and Anr.
• Or read the Judgement embedded herein below:

A person with 71% physical disability can't study Medicine - says MCI's resolution!

Dear Colleagues,

The resolution of Medical Council of India that the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability itself is faulty. The degree of disability is a medical model and can not be a conclusive reason to declare what a person with disabilities can do or not do. Then we have highly subjective disability evaluation system wherein two different doctors give different grading of disability to the same person. A person with 71% will thus be technically outrightly rejected for the wrong assessment due to subjectivities involved.

Hon'ble High Court may have given the benefit to the petitioner in the instant case, however, technically even the bench is not competent to decide on the degree of disability, unless doubting the State Medical Board's assessment, it ordered for re-constitution of Medical Board which gave an otherwise recommendation on it. 

At the most, the bench could have expressed its opinion on the discernible abilities of the petitioner observed by them and ordered accordingly. I feel, getting in to guess work of percentage of disabilities is like falling in to the trap of 40-70 percentage set out by the improper and unreasonable resolution of the MCI which is not supported by the disability legislation in the country. This classification has been created by MCI of its own which doesn't stand the test of law.

Here is the news coverage:

Reconsider admission of physically disabled student: HC

A special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent.

Written by Ruhi Bhasin | Mumbai | Published on:June 26, 2015 2:50 am

Noting the movements of a physically disabled student inside the courtroom, the Bombay High Court has directed the state government to consider his admission in the first of year MBBS course. The student was earlier denied admission under the physically handicapped quota.

“He (petitioner) has been walking with braces and having seen his physical movements in the court room, we are of the view that his disability cannot be assessed as 88 per cent. His case should be considered for admission to the first year MBBS course on the basis that his disability is between 50 per cent and 70 per cent ,” said Chief Justice Mohit Shah and Justice A K Menon.

Earlier, a special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent. While under the Medical Council of India resolution, the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability.

The HC, however, directed the state government to consider his case on the basis of his marks obtained by him in the common entrance, MH-CET, 2015, for admission to first MBBS course in a seat reserved for physically handicapped.

The student had sought admission to the first year MBBS course in the Government Medical College in a seat reserved for physically handicapped on the ground that his disability is between 50 percent and 70 percent.

He was born on March 18, 1996 and had been suffering from congenital disability involving both the lower limbs due to Bilateral Congenital Dislocation (CHD) of hip and Congenital Talipes Equinovarus (CTEV).

From 1996 to 2004, his father who is a doctor, provided him with treatment and care, including multiple surgeries and physiotherapy.

The boy underwent five surgeries on the deformities and the correction was carried out to the extent that there is no more dislocation of the hip joint.

There were, however, restrictions to the hip joint while doing physical activities of the lower limb. Pooja Thorat, the petitioner’s lawyer, informed the court that the special medical board has examined him without wearing braces. “He, infact, was wearing braces even while studying in school and was himself commuting from his residence to the school,” the lawyer had submitted.

Source: Indian Express

Bombay High Court rules Doctors with disabilities can not be denied admission to PG Courses

Please refer to my earlier post in which the Bombay High Court had allowed admission of a disabled girl to the MBBS Course. However, it seems MCI doesn't want to be pro-active in considering disability from a human angle (doctors have been trained to look at disability from a medical angle... so it may not be their fault, its a systemic problem! :-)

However, MCI may learn from the increasing number of cases getting reprieve from the High Court on such issue and frame a disability friendly policy rather than a medically oriented "degree of disability" policy without any human touch and effort to see the ability in the disability !

Three disabled doctors get high court's reprieve

MUMBAI: Three disabled doctors who were denied the chance for admission to PG Medical Courses have got reprieve from Bombay High Court.  A division bench of Chief Justice Mohit Shah and Justice Ranjit More, in an interim order, directed authorities to consider their case for admission to a PG course in (medicine) or in a non-surgical branch. 

"(Their case would be considered) under physically handicapped category by considering (them) to be eligible for such reservation and on the basis of performance in the CET," said the judges. 

The petitions challenged the constitutional validity of the rules, which said that a candidate with more than 70% disability of the lower limbs cannot be considered to be eligible for admission. The lawyers for the petitioners said the MCI had erred in not considering that the medical courses can be divided into several categories. Dr Manoj Landge, Dr Rakesh Ukey and Dr Astha Ganeriwal were considered ineligible for admissions under this rule.  

Bombay & Madras HC allow admission to disabled students in MBBS

Dear Friends,

In two different cases, the Bombay and Chennai High Courts have directed the MCI to give admission to students with disabilities in MBBS course. Here are both the cases:

Case No. 1 at Bombay HC

Bombay high court opens MBBS door for disabled student

Published: Thursday, Aug 5, 2010, 1:44 IST

By Mayura Janwalkar | Place: Mumbai | Agency: DNA  

Just days after it told the state government that the latter needed to change its mindset in accommodating the disabled, the Bombay high court on Wednesday directed the state to grant a 19-year-old physically challenged student provisional admission to an MBBS course.

Khan Mohammed Tarique Mehmood, who has a lower limb disability, had moved the high court after he was denied admission to the course in the physically handicapped category.

The Director of Medical Education and Research (DMER) had refused admission to Mehmood on grounds that he suffered from a disability of more than 75%. As per the Medical Council of India (MCI) rules, a person with locomotive disability of lower limb (more than 50%) can not apply for MBBS.

However, in his petition before the court, Mehmood had contended that his disability was certified as 50% by the All-India Institute of Physical Medicine and Rehabilitation (AIIPMR). Moreover, Mehmood had also stated that he stood seventh in the state in the handicapped category in the common entrance test conducted by the government.

According to Mehmood, the DMER’s decision was contrary to the certificate issued by the IIPMR, which is a central government institute named in the DMER’s admission brochure. A bench presided by chief justice Mohit Shah admitted the petition and granted provisional admission to Mehmood in an interim order.

On August 2, the court granted provisional admission to a visually challenged girl who wished to pursue a career in physiotherapy.

-------

Case No. 2 at Madras HC


Disabled girl wins court battle for MBBS admission
TNN Oct 2, 2011, 03.31AM IST

CHENNAI: In a major victory, P Divya of Royapuram has won a court case which will now enable disabled students across the state - other than those with locomotor disability in the lower limbs - to seek admission for an MBBS course. The Madras high court has directed the directorate of medical education (DME) to provide Divya admission to the MBBS course for this year.

After applying for a medical seat under the special category (orthopaedically physically disabled), Divya attended counselling on June 30, 2011. Medical council of India (MCI) regulations stipulate that only people with 40-70% locomotor disability in the lower limbs are entitled to 3% reservation for MBBS admission under the Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation Act), 1995. Though she produced a disability certificate from the regional medical board, government hospital, Chennai, it was not accepted by the selection committee.

"They did not give us a proper reason for rejecting her so we filed a writ petition," counsel for petitioner R Prabhakaran said. When the petition came up in the HC, Justice D Hariparanthaman had directed DME to ascertain Divya's disability and also ordered that one seat be kept vacant. She was sent to another regional medical board at GH, which gave a certificate on July 19.

This certificate said she suffered from a spinal deformity due to which she had a torso imbalance and a total physical permanent disability of 46%. If the certificate was read to the effect that Divya suffered locomotor disability above 40%, she was entitled to admission under the 3% reservation category, he added.

Passing orders, Justice D Hariparanthaman said the reservation provided only to persons with locomotory disability in the lower limbs was in violation of the Persons with Disabilities Act. He quashed the notification and directed MCI to include other categories of disabled persons, more particularly those with disabilities above 40% in its regulation.

DLU East - a unit of Shishu Sarothi explores success in rights through courts

Dear Friends,

Shishu Sarothi through its unit Disability Legislation Unit South has been a front runner in taking up disability rights issues in the north east region of India. In a recent PIL filed before the Gauhati High Court bearing No. Writ Petition(Civil) 34/2008, they have obtained favourable orders from the Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr.Justice A Potsangham on December 17, 2008.

In the instant case, the Director of Medical Education, Assam issued a notice for admission to paramedical courses in the three medical courses to fill up 400 seats among 12 different paramedical courses.

In the impugned admission notice the Director changed the definition of disability to suit their own whims and fancies. To fill up 3% quota of disabled they choose "only the persons with locomotor disability of the lower limbs and having 50 to 70 per cent of disability". This by any imagination was a fun of the law of the land and an attempt to throttle the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act-1995 and the Constitution of India.

Here is the coverage that might interest you:

Assam Times: Where executive fails, Judiciary prevails

Where executive fails, Judiciary prevails

Daynath Singh on 31 December, 2008 

The greatest challenges facing persons with disabilities lie in the areas of access, education and employment, said Ms Anju Talukdar, coordinator, Disability Law Unit, NE. Addressing the media persons at Guwahati Press Club on December 31, 2008, she expressed concern over the physical barriers in the environment coupled with societal prejudice severely restrict and often completely block available opportunities. One of the laws enacted to ensure the protection of persons with disabilities in India is the 'Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995. Unfortunately, even with its many beneficial provisions, the said Act has failed to achieve its objectives due to poor implementation and in many cases non-implementation of its provisions. This was simply demonstrated in a recent case involving admissions to seats in paramedical courses in the three medical colleges of Assam.

On May 12, last an Educational Notice was issued by the Director of Medical Education, Assam, for admission to paramedical courses in the three medical courses. A total of 400 seats were to be filled up among 12 different paramedical courses. The Act guarantees certain rights to persons with disabilities including the right spelt out in Section 39 which says "all educational institutions to reserve seats for persons with disabilities. All government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three percent seats for persons with disabilities."

The advertisement issued by the Director of Medical Education provided for three per cent reservation for persons with disabilities, but the definition of who is a person with disability was as unique as it was inaccurate. It was also clearly contrary to the law, she said. Under the Persons with Disabilities Act 'person with disability' means a person with 40 per cent or more of blindness, low vision, leprosy-cured, hearing impairment, locomotors disability, including cerebral palsy, mental retardation and mental illness.

This very clearly definition of disability as spelt out by the law was not enough for the authorities. They came up with their own definition and as per the admission notice, three percent reservation quota would be made available for persons with disabilities, but 'only the persons with locomotors disability of the lower limbs and having 50 to 70 per cent of disability shall be eligible for this quota.'

This was clearly against the provisions of the Act. Anju Talukdar and Rakhi Sirauthia Choudhury of the Disability Law Unit, Northeast challenged this educational notice in the Gauhati High Court in a Public Interest Litigation, which was numbered as PIL 34/2008. This Unit is a project of Shishu Sarothi and fights for the rights of persons with disabilities by creating awareness on the various disability laws, advocating disabled friendly policies and facilitating litigation in case of violation of rights.

The case was argued on behalf of the petitions by their counsel, Siddharth Shankar Dey, renowned advocate of the Gauhati High Court and strong defender of disability rights. On June 16, 2008 the petition was admitted by the court and as an interim measure, the authorities were directed to receive applications from all categories of persons with disabilities. On June 27, the Director of Medical Education issued a corrigendum inviting applications from all categories of persons with disabilities.

The Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr. Justice A Potsangham on December 17 last allowed the petition directing that three percent reservation for persons with disabilities would be available for all categories of disabilities. The High Court rejected the argument of the State of Assam that restricting the reservation to only the persons with locomotors disability of the lower limbs and having 50 to 70 percent of disability was justified under the guidelines of the Medical council of India. Interestingly, the documents relied on by the State of Assam itself showed that the Medical Council of India had prescribed guidelines only with reference to admissions to MBBS and PG medicine courses. No mention was made of paramedical courses. Further, there was nothing in the law to exclude persons with other disabilities from qualifying on merit to the paramedical courses. So no such exclusion can be made for seats reserved for persons with disabilities.

The decision of the Gauhati High Court is a huge encouragement to the disability sector –not just in Assam, but the entire Northeast and in fact the whole country. It is often seen that government authorities neglect and ignore their obligations under the law. There has often been no other recourse available but to approach the courts to secure the rights and interests of the persons with disabilities. While the executive continues to pose obstacles in the path, it is a huge relief that the judiciary has consistently proved a bastion and bulwark in defense of persons with disabilities, said Ms Talukdar.

- See more at: http://www.assamtimes.org/node/2394#sthash.MPaysaBk.dpuf

Another girl denied admission to medical course -this time due to higher %age of disability

Dear friends,

I want to share another case of neglect and improper application of disability laws, against persons with disabilities rather than in favour of.

The girl, Pooja Dubey, quite brilliant though, has been denied admission on the grounds of her 80% degree of disability. While a national institute has declared her fit, the authority do not believe it. The girl emphasizes that the degree is with respect to the disability (Post Polio Residual Paralysis) in her right leg only while she is competent to undergo the course, the medical institute argues that it is with respect to whole body!!!

Another excuse to disregard the Act! Though Mumbai High Court has asked for re-examination of the candidate and the possibilities are that she will be taken in as the same institute has already declared her fit to undergo the course before appearing for the entrance test! I am concerned that the Learned Judges went on to ask her that what she will do in emergency - raising a question on her abilities ! I feel the courts should refrain from such targeting questions when her assessment on record confirms her capabilities.

Here is the news

HC asks medical body to decide disabled candidate

Mayura Janwalkar Tuesday, September 30, 2008 03:20 IST

Pooja Dubey was denied admission due to a handicap in her right leg.

Pooja Dubey, 17, moved the Bombay high court after being denied admission in the MBBS course owing to a handicap in her right leg. She probably drew hope from the case of Dr Saroj Yadav who despite the same handicap in her arm was allowed a post-graduate seat in the radiology faculty by the court earlier this month.

Although Yadav left the court premises with all hurdles on her way to becoming a radiologist removed, Dubey’s fate still remains uncertain. The case of Mira-Road resident Dubey is, however, not identical to that if Yadav. Dubey who suffers from post polio residual paralysis of her right limb between her thigh and her knee, secured the 15th rank among handicapped candidates in the medical CET conducted in May this year.

She and her father Bhanu Prakash Dubey hit the panic button after her name did not appear even on the second list of selected candidates issued in August. Her father had written several letters to the Directorate of Medical Education and Research (DMER). He also submitted a certificate from the All India Institute of Physical, Medical and Rehabilitation stating that Dubey was fit to undergo training in the Health Science course that she had opted for.

However, the DMER had refused her admission on the ground that the percentage of her disability was 80%. As per the DMER and the Medical Counsel of India, a disability of more than 40% and less than 70% was permissible for pursuing a medical course.

Dubey’s advocates Mayur Khandeparkar and Swapna Kode contended that she had been examined by the medical board of the DMER prior to seeking admission and nowhere during the admission procedure was Dubey informed that she was ineligible to pursue the course.

After hearing the case on Monday, chief justice Swatanter Kumar and justice SA Bobade directed the DMER to reassess Dubey’s case and disposed off the petition. “If the competent authority (DMER) is saying that the disability can hamper your (Dubey’s) performance, how can the court say otherwise?” Kumar said. He asked, “What will you do in case of emergency?” Dubey’s dream of becoming a doctor, now hinges on the decision of the DMER that has to re-consider her case in a week’s time.

Khandeparkar told the court that Dubey under the Persons with Disabilities Act, 1995, had a right to seek admission to the course. He added that her left leg was fully functional and the 80% disability, as stated by the DMER, was restricted to her right leg. Bobade, however, remarked that the percentage of disability was not just restricted to the affected organ but was with reference to the whole body.

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