Tathagata Ghosh vs SUnion of India & Ors.

Petitioner by this writ petition wants admission in Physically Handicapped (PH) quota having physical disability of mental illness. Disability certificate

dated 28th April, 2018 issued by District Hospital, Howrah certifies petitioner has percentage of disability having changes of variation calculated at

more than 40 per cent. Petitioner on being subjected to examination by SSKM Hospital was refused disability certificate on regret to inform it was not

possible to issue disability certificate since he had more than 40 per cent in Schizo Affective Disorder.

Record of submissions on 14th August, 2018 refers to guidelines of Medical Council of India (MCI) published in Gazette of India: Extraordinary on 5th

January, 2018, to effect, persons with less than 40 per cent mental disability are not eligible for reservation under PH category and persons with more

than 40 per cent mental disability, not eligible for admission to the course.

Mr. Maitra, learned senior advocate appears on behalf of petitioner and relies on order dated 25th August, 2018 of Supreme Court in writ petition (C)

669 of 2018 (Purswani Ashutosh (Minor) through Dr. Kamlesh Virumal Purswani versus Union of India & Ors.) in which Supreme Court said as

follows:

“Be that as it may, as mentioned hereinabove, it is not necessary for this Court to adjudicate the question of whether Section 32 of the 2016 Act is

attracted or not, in view of the admission that the Medical Education Regulations which incorporate the provisions of the 2016 Act in relation to

reservation to higher educational institutions, have statutory force and are binding on the MCI. The regulations have not yet been amended by the MCI

in the light of the recommendations made by its Committee and the decision taken at the Secretariat level.

No amendment in the 2016 Act or in the regulations framed by the MCI have been made so far. For the reasons discussed above, this Court holds

that the petitioner cannot be denied admission to the MBBS course if he qualifies as per his merit in the category of Persons with Disability. In the

event, the petitioner is found to be entitled to admission, he shall be given admission in the current academic year 2018-19.â€​

Mr. Maitra disputes the guidelines to be contents gazetted. He hands up print out of Gazette of India: Extraordinary published on 5th January, 2018

which is taken on record. Supreme Court in Purswani Ashutosh (supra) considered whether a person with bench mark disability of low vision, within

meaning of section 2 (r) read with clause 1(B) of the Schedule to Rights of Persons with Disabilities Act, 2016 can be denied benefit of reservation

for admission to MBBS Medical Course. Clauses (r) and (zc) of section 2 in said Act were relied upon for definitions of person with bench mark

disability and specified disability. Sub-regulation (3) in regulation 4 of Regulations on Graduate Medical Education, 1997 was also relied upon as

providing relaxation in minimum marks in qualifying examination in required subjects.

Adjudication of controversy regarding whether petitioner is entitled to reservation under PH category thus needs ascertaining facts regarding what is

bench mark disability in case of mental illness. Court has, in material before it, a certificate which has not sought to be impeached by respondents.

Requirement under admission procedure of petitioner obtaining certificate from SSKM Hospital resulted in petitioner being denied a certificate. Court

will rely on certificate produced for purpose of finding out whether petitioner possesses bench mark disability in mental illness for direction to be made

accordingly. Parties are requested to furnish this information to Court. All parties except Union of India submits, it is Union of India which determines

mental disability bench mark.