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Judgment
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S. M. Modak, J
Petitioner through her Advocate has sought leave to delete the respondent no.5 not being a necessary party.
The learned Adv., for other respondents has no objection for such deletion.
Leave is granted. Name of respondent no.5 be deleted forthwith.
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Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel for the parties.
The petitioner, who has passed her XIIth Standard Examination and who wants to appear for NEET Examination for Medical Courses, has
approached this Court for issuing necessary directions to respondent nos. 1,2 and 4 to have a proper evaluation of her medical examination by the
Special Medical Board. Her disability falls under “Hemophilia†to the extent of twenty per cent and hence she was held not eligible for admission
to medical courses. This Certificate dated 2.7.2018 was issued by Grant Medical College, Mumbai. This certificate is signed by Dean, Heads of
Departments of Medicine, Orthopedics, Neurology, and by Medical Superintendent of Grant Govt. Medical College, Mumbai. The grievance of the
petitioner is two fold â€" [1] she is challenging the constitution of the Medical Board, and [2] the percentage of disability ascertained by the Medical
Board is not correct.
The petitioner relied upon the definition of “Person with Benchmark Disabilityâ€,as laid down under Section 2 (r) and the definition of Specially
“Specified Disability†laid down under Section 2 (x) (c) of Rights of Persons with Disabilities Act, 2016.
On appearance, the respondents relied upon the case papers as well as one Govt. Resolution dated 12th June, 2018. We have read that Govt.
Resolution. This was issued on the directions of Central Govt. laying down the procedure for issuing disability certificates. It is for the purpose of
reserving five per cent seats for persons with disability in medical course. It lays down the procedure for obtaining the certificate. It also talks about
constitution of Special Medical Board. The list of such students seeking reservation is to be sent through CET Cell.
There are broadly four categories of disabilities prescribed therein Disability caused due to blood disorder is laid down in Clause (b) of Category 4
(Disability caused due to).   A pathologist is a necessary member of that Board. In addition to that, the Govt. Resolution further says an expert
can also be added as per the requirement.
Haemophilia is a kind of blood disorder and it is included under the Category 4 “Disability caused due to†of Specified Disability as per the
Schedule annexed to 2016 Act. A person having forty per cent or more of Specified Disability as a disability is one of the pre-conditions of the
category “Person with Benchmark Disability†of 2016 Act, whereas in the case before us the Medical Board has certified the petitioner to twenty
per cent being the carrier of Haemophilia and hence not eligible for reservation (less than forty per cent).
As per the petitioner, a Haeamatologist is required considering the nature of disability of the petitioner. There cannot be any dispute about the
necessity of Pathologist being part of the Medical Board. So also, we feel that considering the nature of disability as contended by the petitioner, a
Haematologist is also a part of the Medical Board. Even though there can be internal case papers signed by the Pathologist relied upon by the
respondents, still it does not fulfill the requirement of Govt. Resolution. He needs to be a part of Medical Board. The Medical Board just relied upon
the analysis done by National Institute of Immunohaematology. Pathologist has signed the Disability Certificate, but no independent tests carried out by
pathologist of Grant Medical College were pointed out to us on behalf of the Government. This is a certificate different from certificate relied upon by
the petitioner. It mentions about examination on 22.6.2018 and 23.6.2018
We feel that taking advice of an expert as per that Govt. Resolution is not an empty formality. If the expert, and, in this case, a Haematologist,
could have been included in the body of the Medical Board, that must have assisted the other Members in arriving at a correct opinion. That opinion
may be on either side. There is some definite intention behind incorporating that provision in that Government Resolution.
So, what we feel is that the Certificate issued by the Medical Board dated 2.7.2018 does not fulfill the requirement of the Government Resolution as
well as provisions of 2016 Act.
Ultimately, it is a job of doctors to arrive at the disability and its percentage. So, we do not intend to encroach upon their powers. So, instead of
issuing a direction to respondents to issue a Certificate, we feel that necessary directions can be given to the respondents. Hence, we allow the
petition partly and proceed to pass the following order :-
[a] The respondent nos. 1,2 and 4 are directed to formulate a separate Medical Board consisting of a Pathologist as well as Haematologist, within one
month from today.
[b] The petitioner is directed to appear before that Medical Board.
[c] The Medical Board is directed to examine the petitioner afresh by conducting appropriate tests at a place wherever possible and to issue the
Certificate within a further period of one month.
For want of necessary Disability Certificate, the petitioner was not admitted to the concerned examination. Now, at this stage, it will be difficult to
give necessary directions to the Department of Medical Education-Respondent No.3 for giving admission to the petitioner. Hence, that prayer cannot
be considered.