M.R. Shah, J. - (1.) In all the writ petitions, the respective petitioners - students have prayed for an appropriate writ, order or direction directing the respondents - State Government to treat the petitioners eligible for reservation under Persons with Disability (PwD category) and grant them admission in MBBS Course for the academic year 2019-20. It is the case on behalf of the respective petitioners that all of them are eligible to pursue MBBS Course and they shall be granted admission under the PwD category as they are suffering from 'locomotor disability'. All of them are seeking admission to MBBS Course in the reserved category under PwD quota.
(2.) That Section 32 of the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the '2016 Act'), which came into force with effect from 19.04.2017 provides for reservation of not less than 5% in government educational institutions. Accordingly, the Medical Council of India notified the Regulations for providing 5% seats to candidates with benchmark disability in accordance with the provisions of the 2016 Act. It is the case on behalf of the petitioners that process of admission for MBBS Undergraduate course for the academic year 2019-2020 commenced in the last week of October, 2018 and the eligible candidates were to submit applications on-line between 01.11.2018 to 30.11.2018. That the admit cards were released on 15.04.2019 and the examination was held on 5.5.2019, followed by declaration of result on 5.6.2019. All the respective petitioners appeared in the NEET (UG) 2019 and were declared successful. However, it is required to be noted that in the meantime the Board of Governors in supersession of the Medical Council of India amended the Regulations of Graduate Medical Education, 1997, by notification dated 4.2.2019, whereby Appendix 'H' came to be added to the erstwhile Regulations, 2017 - providing for minimum degree of disability to be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. Appendix 'H' further provided that in case of 'physical disability or locomotor disability', the applicant may be assessed for "Both hands intact, with intact sensation, sufficient strength and range of motion" as essential to be considered eligible for medical course". As observed hereinabove, thereafter the result of NEET (UG) 2019 came to be published in the month of June, 2019. As per the requirement, all the respective petitioners appeared before the Medical Board. However, all the respective petitioners were not fulfilling the requisite criteria as per Appendix 'H' to notification dated 04.02.2019 in the list published by the State Government on 29.06.2019. The petitioners were declared non-eligible for medical course. That thereafter the petitioners appeared before the Medical Appellate Board and the Medical Appellate Board also declared the petitioners not eligible for medical course. Hence, the respective petitioners have preferred the present petitions under Article 32 of the Constitution of India for the afore-stated reliefs.
(3.) Learned Advocate appearing on behalf of the respective petitioners have vehemently submitted that the case of the petitioners for admission in the MBBS Course under the reserved category of PwD for the academic year 2019-20 shall not be governed by notification dated 04.02.2019, and that they shall be governed by the MCI Regulations, 2017. It is submitted that the relevant date to ascertain eligibility of the petitioners for medical course is to be determined on the date when the process of selection commenced, i.e., on 01.11.2018. It is submitted that on the relevant date MCI Regulations, 2017, dated 22.01.2018, were applicable and therefore eligibility, as such, for medical course is to be determined in terms of the provisions of the said Regulations. It is submitted that Appendix 'H" to the notification amending the Regulations, 2017, which came into force with effect from 04.02.2019, therefore shall not be applicable. 3.1 It is further submitted by the learned counsel appearing on behalf of the petitioners that rules of game cannot be changed midway, as per the settled proposition of law. In support of his above submission, learned counsel for the petitioners has heavily relied upon the recent decision of this Court dated 30.05.2019 in Writ Petition (Civil) No. 55 of 2019, titled Janhit Abhiyan v. Union of India. It is submitted that in the said decision, this Court has held that the EWS reservations could not be made applicable midway after the selection process for medical PG of 2019, which commenced in the month of November, 2018, whereas notification reserving EWS quota came in February/March, 2019. 3.2 It is further submitted by the learned counsel appearing on behalf of the petitioners that even otherwise the petitioners are eligible under Regulations, 2019 also as they fulfil the required percentage disability between 40-80%. It is submitted that the minimum percentage disability to be eligible for availing reservation under PwD is 40%. It is submitted that "PwD not eligible for medical course" is stated as per the Regulations, 2019 to be beyond and in excess of 80%, which is not the case in hand. It is submitted that the relevant provisions of Regulations, 2019 - "Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered" has been applied by the State Government to non-suit the petitioners for medical course in an arbitrary manner and without application of mind. It is submitted that while rejecting the petitioners to be not eligible for medical course, the State Government has not at all considered the fact that PwD is bound to have certain problems including the parameters mentioned in Appendix 'H' [Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered] with clause (f) of Clause 4(1) of the Regulations, 2019. 3.3 It is further submitted by the learned counsel appearing on behalf of the petitioners that while applying the parameters mentioned in Appendix 'H' with clause (f) of Clause 4(1) of Regulations, 2019 [Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered], the State Government did not consider the facts that, petitioner no.1 has good muscle power, does gripping and activities of daily living with modifications; petitioner no.3 is right side dominant and his right hand is perfectly fine; the range of motion in left hand is not nil, rather restricted, does activities of daily living with little difficulty and the affected (left) hand has good muscle power as well; petitioner in Writ Petition (C) No. 900 of 2019 is right side dominant and his right hand is perfectly fine; affected body part is left hand only. Left hand has good pinch with modification and does daily activities with upper limb right side; petitioner in Writ Petition (C) No. 1026 of 2019 is left side dominant and his left hand is perfectly fine; affected body part is right hand only. 3.4 Making the above submissions, it is prayed to allow the present petitions and direct the respondents to consider the case of the petitioners for admission in MBBS Course in the PwD quota as per merit.;