$~58

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 7820/2018
TINA SHARMA (MINOR) THORUGH HER FATHER
BHAGWATI PRASAD SHARMA ..... Petitioner
Through: Mr. Jeetender Gupta, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Nikhil Goel, Mr. Gurpreet Hora
& Mr. Ashutosh Ghoole, Advocates
for R-1
Mr. T Singhdev, Ms. Puja Sarkar, Ms.
Michelle Biakthansangi Das, Mr.
Tarun Verma, Mr. Abhijit
Chakravarty & Ms. Amandeep Kaur,
Advocates for R-3
Mr. Amit Bansal with Ms. Seema
Dolo, Advocates for R-4
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
ORDER
% 31.07.2018
CM No. 29951/2018
Allowed, subject to all just exceptions.
WP(C) No. 7820/2018
Issue notice. Mr. Nikhil Goel, Mr. T. Singhdev and Ms. Seema Dolo,
Advocates accept notices on behalf of respondent nos. 1, 3 and 4
respectively and seeks time to file reply. Let reply be filed within four
weeks. Rejoinder, if any, be filed within four weeks, thereafter.
List on 14th November, 2018.

CM No. 29952/2018
Issue notice.
Having heard learned counsel appearing on behalf of the parties, the
present application is disposed off with the following order.
1. The present petition under Article 226 of the Constitution of India
has been instituted on behalf of a candidate, who aspires for
admission to a medical college under the physically handicapped
category, i.e. hearing impaired. The petitioner having successfully
passed the class XII examination conducted by the CBSE appeared in
the National Eligibility Cum Entrance Test (for short ‘NEET’) (UG) -
2018 for admission to a medical college.
2. The information bulletin published by the CBSE clearly provided
that, in accordance with the provisions of the Rights of Persons with
Disabilities Act, 2016 (hereinafter referred to as the ‘said Act’) and
based on the merit list of the NEET (UG), 5% of the annual
sanctioned intake capacity shall be filled up by the candidates of
benchmark disability, in accordance with law.
3. Persons with benchmark disability are defined under Section 2(r) of
the said Act. The same is reproduced hereunder for the sake of
completeness:
“person with benchmark disability” means a person with not
less than forty per cent, of a specified disability where specified
disability has not been defined in measurable terms and includes a
person with disability where specified disability has been defined in
measurable terms, as certified by the certifying authority.”
4. A conjoint reading of the relevant provisions of the said Act, leads to
the following inescapable conclusions :-
(a). Persons with benchmark disability, as provided under Section 2 (r) of
the said Act are entitled to equality of opportunity, respect of inherent
dignity, individual autonomy, freedom of choice, right against non-
discrimination, full and effective participation in society and equal
opportunities and are not to be discriminated against on the basis of their
disability.
(b). The provisions of the said Act require that any person with benchmark
disability who suffers a minimum of 40% of a specified disability is entitled,
as a matter of right, to be educated in institutions which are funded and/or
recognised by the Government of India.
(c). The Schedule to the said Act further defines specified disability in
relation to a person with a hearing impairment as deaf, provided they have
70 DB hearing loss in speech frequencies in both ears.
5. A plain reading of the above conclusions and the Preamble of the said
Act makes it axiomatic that, the same is a legislation enacted with the object
of promoting and securing the rights of persons with disabilities. It is an
enactment designed to ensure a dignified response to the urgent societal
demand for mainstreaming persons with disabilities and including them in
the benefits of higher education.
6. Needless to state that, the enactment is in consonance with the
principles enshrined and enunciated in the Constitution of India, and in
particular the preamble, as well as, the Directive Principles of State Policy
as inserted in Part – IV thereof.
7. It is in the above background that, the Court must consider the
recommendations of the Expert Committee set up by the Medical Council of
India (for short ‘MCI’) on candidates with the specified benchmark
disability of impairment of hearing, whereby they have determined as
follows :-
 “ In view of the competencies that cannot be completely or partially
acquired by a person with auditory disability, a provision be
incorporated in the Graduate Medical Education Regulations that
persons with auditory disability greater than set bench mark of 40%
are not entitled to pursue Graduate Medical Education.”

8. It is an admitted position that, the aforesaid recommendation has not

yet attained finality and is pending consideration before the Central
Government.
9. It is further an admitted position that the amendment, in this behalf,
has so far not been carried out in the relevant regulations.
10. Coming to the facts of the present case, the petitioner secured
95.077883 percentile score in the NEET (UG) - 2018. The petitioner’s
overall rank category rank and category-PH Rank were 62153, 34080 and
29 respectively.
11. The petitioner having been found to have hearing disability of 70%,
was issued a disability certificate by Vardhman Mahavir Medical College &
Safdarjung Hospital, New Delhi. Pursuant thereto, on the basis of her
academic excellence, the benchmark disability and the disability certificate,
the petitioner was issued a provisional allotment letter (round I) and advised
to report and join the Sardar Patel Medical College, Bikaner. Subsequent
thereto on 2nd July, 2018, in pursuance of the report dated 5th June, 2018,
impugned in the present petition, the petitioner has been denied admission
altogether.
12. Learned counsel appearing on behalf of the petitioner would urge that,
in terms of the provisions of the said Act and the decision of the Hon’ble
Supreme Court in All Kerala Parents Association of Hearing Impaired and
Another vs. State of Kerala and Others, reported as (2018) 2 SCC 410, the
right of the petitioner predicated on her disability to be admitted to a
Medical College is absolute.
13. Per contra, Mr. Singhdev, learned counsel appearing on behalf of the
MCI – Respondent no.2 would urge that, the persons with specified
benchmark disabilities, such as the petitioner, who suffer from hearing
impairment, in terms of the impugned report published by them, cannot be
permitted to participate in the admission process to the course of MBBS.
Learned counsel relies on a decision of a Division Bench of Bombay High
Court in Joshua Jesse Levi & Anr. vs. State of Maharashtra & Ors. in this
behalf.
14. Mr. T. Singhdev, learned counsel appearing on behalf of the MCI, has
also invited my attention to a decision of a Division Bench of this Court in
Deepshikha vs. Medical Council of India & Ors. reported as 2015 (150)
DRJ 387) and in particular to paragraph 41 thereof, to urge that the
classification which renders hearing impaired persons as being ineligible to
study medicine is rational and has a reasonable nexus with the object sought
to be achieved.
15. In this behalf, reliance is placed on paragraph 34 of the decision in
Deepshikha (Supra) to state that, in Union of India vs. Devendra Kumar
Pant reported as (2009) 14 SCC 546, the Hon’ble Supreme Court observed
that, if the disability would effect the discharge of functions or performance
in a higher post or would pose a threat to the safety of the public, persons
with such disability can be denied admission to the course of MBBS.
16. In my considered view, the decisions canvassed on behalf of the MCI
to justify the recommendations of the Committee, do not come to their aid,
inasmuch as, they do not deal with specified benchmark disabilities.
17. It is trite to state that, where an enactment provides for an act to be
carried out in a particular manner, the law requires that it be carried out in
that specified manner and no other. [Ref: King Emperor Vs. Khwaja Nazir
Ahmed, reported as (1945) 47 BOMLR 245].
18. Mr. Justice Frankfurter in Viteralli vs. Saton reported as 359US535:
Law Ed (second series) 1012 enunciated the rule that “An executive agency
must be rigorously held to the standards by which it professes its action to
be judged. This judicially evolved rule of administrative law is now firmly
established and, if we may add, rightly so. He that takes the procedural
sword shall perish with the sword.” The Courts, commencing with the
decision of the Hon’ble Supreme Court in R.D Shetty vs. International
Airport Authority reported as (1979) 3 SCC 489, have followed this
principle in a catena of decisions.

19. The said Act came into being to give effect to the United Nations
Conventions on the Rights of Persons with Disabilities, to which India was a
signatory. The Preamble to the said Act does not permit for any deviation
from the stated objective, namely, to accord respect for inherent dignity,
individual autonomy, freedom of choice, right against non-discrimination,
full and effective participation in society and equal opportunities in all walks
of life, as eloquently elaborated therein, to persons who are differently
abled.
20. In this view of the matter, I am of the considered view that prima
facie, the recommendations of the Committee set up by the MCI,
disentitling persons with specified benchmark disability from pursuing
under graduate medical education are abhorrent to the principles enshrined
in the Constitution of India and to the provisions of the said Act.
21. Consequently, I have no hesitation in directing the official respondent
to direct the petitioner to participate in the counselling for the MBBS course
for the academic session 2018-2019, at a medical college, in terms of the
rank secured by her in the NEET – 2018, under the physically handicapped
category and to reserve a seat for her in MBBS course for the said session.
22. With the above directions, the application is disposed of.
23. A copy of this order be given dasti to the counsel for the parties, under
the signatures of the Court Master.

SIDDHARTH MRIDUL, J
JULY 31, 2018
p