Tathagata Ghosh vs Union of India & Ors Saibal Kumar Mukherjee

This writ petition has been heard on dates preceding and today. Record of submissions made earlier appear in order sheet, copies of which parties

have obtained.

Petitioner has challenged cancellation of seat allotted to him by document disclosed at page 39 of writ petition. Mr. Biswarup Bhattacharya, learned

advocate appearing on behalf of petitioner submitted, purported reason in impugned cancellation is PC Changed: PC to NO. This indicates

‘physically challenged’ changed to ‘physically challenge no’. This reason cannot stand scrutiny. He referred to disability certificate dated

28th April, 2018 granted by District Hospital, Howrah to his client as well as document dated 21st June, 2018 issued by I.P.G.M.E&R. Relevant as

appearing from the former is that his client’s percentage of permanent/partial disability having changes of variation is calculated at greater than

40% and the case requires review after two years. By latter document similar diagnosis of more than 40% in Schizo affective disorder has been

stated. He referred to Rights of Persons with Disabilities Act, 2016 to clauses (r) and (s) under definitions section 2 and category 3 in the schedule

referred to in clause (zc), also under said definition section 2. He pointed out, this category 3 in the schedule has been reproduced in paragraph 5 of

affidavit-in-opposition used by State. Furthermore, prologue of a report has been annexed to said affidavit in which it is said, proposal so forwarded to

Ministry of Health and Family Welfare have till date not been approved by the competent authority of Government of India. So his case that

respondent authorities be directed to give petitioner admission on interference of this Court.

Mr. Dutta, learned senior advocate, Additional Government Pleader, appearing on behalf of State relied on affidavit used by his client, particularly to

extract therefrom reproduced below :-

“5.(viii) … … …It is also placed on record that the Principal, NRSMCH, Kolkata has followed the extant guideline of MCC, Government of

India,

WBMCC, Government of West Bengal and the Medical Council of India in taking the decision of cancellation of the allotted seat of the petitioner.â€​

Today Mr. Dutta submitted further, no seats are now available for petitioner to be accommodated in event there is interference by Court to that

effect.

Mr. Sougata Bhattacharyya, learned advocate appearing on behalf of Medical Council of India submitted, there had not been gazette notification of

report submitted by his client till 30th August, 2018 and he does not have instructions regarding whether between then and today such notification has

been published. Mr. Chatterjee, learned advocate appearing on behalf of Union of India had relied on copy of minutes of meeting chaired by

Additional Secretary of concerned department on 17th August, 2018, regarding guidelines for admission of persons with disability to medical education.

Paragraph 4.4 dealt with intellectual disability. In sub-paragraph 4.4.3 the following was said :-

“4.4.3 It was decided that persons with disability of 40% or more will be allowed to pursue medical education with PH quota. No upper limit needs

to be prescribed as the candidate even with such extent of disability would have qualified NEET. Those with disability of less than 40% would not be

entitled to PH quota benefit.â€​

Disability certificate dated 28th April, 2018 issued by District Hospital, Howrah diagnosed petitioner as follows :-

“1. He is a Physically (Orthopaedically, Visionary, Speech and Hearing Disabled/Mentally Challenged person with SCHIZO AFFECTIVE

DISORDER [Psychometry â€" reveals/IDEAS Score = 8], thinking disturbance, severe level of obsessions. (nature of disability)

… … …

3.His/her percentage of permanent/ partial disability / disability having changes of variation is calculated as >40% (FORTY) % & the case requires

review after 02 (Two) Yrs.â€​

Further information regarding petitioner’s condition have been given in the certificate but same are not relevant for purpose of adjudication of

challenge in this writ petition. Document dated 21st June, 2018 issued by Director, I.P.G.M.E &R says, inter alia, as follows :-

“2. Pursuant to the above application, you have been examined by the undersigned/Medical Board on ……….., and I regret to inform that, for the

reasons mentioned below, it is not possible to issue a disability certificate in your favour;

(i) More than 40% in Schizo affective disorder

(ii) Not eligible as a pt of Psychiatry.

(iii)………â€​

Court understands schizo affective disorder Psychometry, said by District Hospital, Howrah as being suffered by petitioner, to reveal, inter alia,

thinking disturbance and severe level of obsession apart from fixing percentage of disability at greater than 40%. Document dated 21st June, 2018

issued by Director I.P.G.M.E&R also says more than 40% in schizo affective disorder. Second statement in said document says, not eligible as a

patient of psychiatry which is not a diagnosis of petitioner but an opinion about him. So, Court has before it material to show schizo affective disorder

is, inter alia, thinking disturbance and severe level of obsession. Category 3 in the schedule covers the two disorders under mental behaviour.

‘Thinking disturbance’ would be covered by ‘substantial disorder of thinking’ and ‘severe level of obsession’ under ‘perception

orientation that grossly impairs judgment’. Under applicable law petitioner is thus found eligible to get admission.

Regarding submission of State made today that no vacancy is available in Nil Ratan Sircar Medical College and Hospital, Court finds impugned in writ

petition is cancellation of seat allotment made by communication dated 11th July, 2018. This writ petition was filed on 25th July, 2018. No interim order

was made on 14th August, 2018 since on behalf of Medical Council of India, material was handed up from which it appeared that guidelines for

purpose of assessing extent of specified disability in a person included under Rights of Persons with Disabilities Act, 2016 was published in Gazette of

India : Extraordinary on 5th January, 2018. That was relied upon by the Council as material standing in the way of petitioner being granted interim

relief. On subsequent date submission of the Council was that there was no such notification made and thereafter impugned cancellation certificate

stayed as an interim measure on 30th August, 2018. State was on notice, as would appear from order sheet, petitioner had applied in contempt for

violation of direction staying impugned cancellation by application filed on 28th September, 2018, wherein petitioner’s contention is that staying of

cancellation means admission be granted, at least provisionally. On all those occasions State did not say there was no vacancy or that seat allotted to

petitioner had been filled up pursuant to impugned cancellation, since stayed. Further there is no such whisper even in affidavit of State affirmed on

10th October, 2018, long after interim order dated 30th August, 2018 was made. On such facts this Court directs respondent authorities to grant

admission to petitioner in current academic year at Nil Ratan Sirkar Medical College & Hospital forthwith. By reason of order in the writ petition

made as above, the same is disposed of. In view of final order in the writ petition, no order need be made for contempt on interim order and the

contempt application is disposed of as well.

Mr. Dutta prays for stay of operation of this order, which is opposed by Mr. Biswarup Bhattacharya. Prayer is considered and rejected.