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Judgment
Heard learned counsel for the parties.
Granted admission to B.Sc. Nursing Course for the
academic session 2016-17, after a lapse of two months, vide order
dated November 24, 2016, the admission granted to the appellant
was withdrawn. The reason was disability in both upper as well as
lower limbs. The disability was found to be more than 40% of both
limbs. Emphasis was laid on the disability suffered by the
appellant of the upper limbs.
Challenge before the learned Single Judge has failed.
For the loss of one year the learned Single Judge has held that the
appellant can sue for damages. The direction for refund of the fee
deposited by the appellant has been directed.
Learned counsel for the appellant relies upon a decision
of the Division Bench of the Gujarat High Court reported as AIR
2011 Gujarat 33, Dr. Deval R. Mehta Vs. Union of India &
Ors.
The decision pertained to the legality of a notification
dated March 25, 2009 issued by the MCI. On the basis of the
same notification the admission of the appellant has been
cancelled.
Noting the definition of a "person with disability" under
Section 2(t) of the Disabilities Act as also Section 2(i) which
defines "disability" and further noting Section 39 of the Act, the
Gujarat High Court took the view that concerning disability of the
upper limb the writ petitioner before the Gujarat High Court could
not be denied benefit of being a disabled person.
The Court held that the Regulation in question so far as
it relates to addition of Section 9(2) (iv)(1)(a) of the Regulations
relating to locomotory disability was ultravires.
It appears that the attention of the learned Single
Judge was not drawn to the decision of the Gujarat High Court.
Following the law declared by the Gujarat High Court,
we allow the appeal and quash the order dated November 24,
2016. The appellant would be entitled to complete the Post Basic
B.Sc. Nursing Course which the appellant had joined after clearing
the examination.
No costs.