1 WP.979/2010 acd

        

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

 WRIT PETITION NO. 979 OF 2010    
               

Ms. Kritika Purohit & Anr.      ....Petitioners.  Vs.  The State of Maharashtra,through the Secretary, Departmentof Medical Education & Drug Control & Anr.   ...Respondents. Ms. Kanchan Pamnani, for the Petitioners.Mr.G.W. Mattos, AGP, for Respondent Nos.1,2 and 5.Mr. S.R. Rajguru, for the Union of India­Respondent 3 and 4.Ms. Vidya S. Gharpure, for Respondent No.6­B.M.C.

 

CORAM: MOHIT S. SHAH C.J. AND S.C. DHARMADHIKARI, J.

         

 DATE: 2nd AUGUST,  2010.

 

Petitioner   no.1   is   a   visually   impaired   student   who appeared   for   XIIth     standard   examination   of   Maharashtra   State Higher Education Board and  secured  101 marks out of 200 marks. Petitioner No.1 accordingly, secured 16508 out of 176632 rank in the state merit list MH­CET (Medical). Petitioner no.1 was in the top2 10%   in   the   merit   list   and   thus   secured   24th  rank   amongst   the physically challenged (Specified Reservation Merit). In this petition under Article 226 of Constitution of India, petitioner no.1 seeks direction to direct the respondents to admit the petitioner no.1 to the degree course in  Physiotherapy. Petitioner no.1 relies   on   the   provision   of   the   Persons   with   Disabilities   (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred as ‘the Disabilities Act’), and also United Nations Convention on the Rights of Persons with Disability under Article 24 on  Education  under  Rule 2(a),  which  states  that Universities  and institutions will make every effort to modify their systems to meet the needs of persons who are disabled so that they can attain their full potential. Learned   counsel   for   the   petitioners   also   relies   on   the instructions  given   by   the   Chief   Commissioner   for   Persons   with Disabilities directing the Director, Directorate of Medical Education and   Research,   Mumbai,   to   inform   and   counsel   the   concerned candidate about the employment opportunities, identification of the jobs to persons with different disabilities. It is further informed that the post of Physiotherapy has been identified as suitable for persons with low vision vide S.J. & E notification no.18­1/2007 at sr. no.175. Learned counsel for the petitioners also relies on the instructions given by the Chief Commissioner indicating that it deny admission in degree  courses   in   Physiotherapy     to   the   visually   impaired   candidates   in violation of section 39 of the Persons with Disabilities Act.The Director of Medical Education and Research, Mumbai  has filed an affidavit on 23.4.2010, stating that the Physiotherapy degree   course   (BPTh.)   is   a   four   years   professional   health   science  course, and that the subjects viz. Anatomy, Physiology, Biochemistry, fundamentals of exercise therapy and fundamentals of Electro therapy are   imparted to the students by way of theory and practical. The affidavit further   states   that   there   are   no specific   guidelines   for granting admission to physically challenged students to the degree course   in   Physiotherapy,   yet,   the   guidelines   as   laid   down   by   the Medical Council of India have been followed by the respondent no.2 in the State of Maharashtra. In consonance with the said guidelines, a candidate with disability of more than 70% in the lower limbs is not eligible for admission to a Health Science course. Furthermore, as per the Medical Council of India guidelines, a candidate with any other disability is not allowed to take admission to a Health Science Course. Further, it is impractical for a person who is totally blind and/or with low   vision   to   effectively   assimilate,   absorb   and   imbibe   medical teaching   involved   in   a   Physiotherapy   degree course,   let   alone undertake the responsibility to treat and attend patients. In view of the above fact, it is stated that the impugned communication dated 13th January, 2010 has issued by respondent no.2 to the Xavier’s 4 WP.979/2010 Resource   Centre   for   Visually   challenged   and   the   impugned  communication dated 9th February, 2010 issued by the respondent no.1 to the said institution. The affidavit further states that instances quoted   by   the   petitioners   in   paragraph   27(f)(i)   to   (iv)   are   either Diploma or Certificate course and are not Degree courses to which the petitioner is seeking admission. It is informed that the stand adopted by the respondents is that in practical terms any person  who is visually impaired cannot be effectively   absorbed   in     Physiotherapy course   and   none   has undertaken the responsibility to teach them. Learned counsel for the petitioners has placed before us communication from   the   Indian   Association   of   Visually   Impaired Physiotherapists,  indicating that there are  various institutes in  the country running Physiotherapy courses, the names of such institutes are as under: 
 

1) Physiotherapy   College   for   the   Blind­   Ahmedabad. Conducting a 3 years Diploma in Physiotherapy affiliated to  Dr.   Babasaheb Ambedkar     University­   Government   of Gujrat);

2) National   Association   for   the   Blind­   Department   of Rehabilitation,   Mumbai. Conducting   a   2   years   certificate course   in   Physiotherapy   approved   by   Maharashtra   State Education Board;

3) Blind   Peoples   Association­   Vastrapur, Ahamedabad. Conducting a 2 year certificate in Physiotherapy approved by Gujrat State Education Board;

4) National   Institute   for   the   Visually Handicapped­ Dehradun. Approved by NIVH.5 WP.979/2010

6] The   certificate   issued   by   the   President   of   the     Indian Association of Visually Impaired     Physiotherapists states that their Association has 195 registered members as on date   of issuance of 

certificate, and that these members have either a 3 year Diploma in Physiotherapy or a 2 year certificate in   Physiotherapy as these are basic qualifications. It is further stated that in  India there are no current facilities to support a Visually impaired student for a standard XIIth science programme, and that all above Diploma and certificate courses   have   basic   subjects   like   Anatomy,   Physiology   and Biomechanics.   Further,   clinical   subjects   like   Clinical   Orthopedics, Neurology, Medicines, etc. are during the 3rd  year of Physiotherapy course. It is further stated that additional focus is made on community based   rehabilitation   and   Psychotherapy   for   their  Diploma   students during their 3rd  year, and that the subjects like Electrotherapy are taught   using   normal   machines   to   all   their  members. The   only modifications required may be the use of a bindi or a small sticker in order to mark different points on the machines. The aforesaid letter specifically states that the safety record of their members   has been excellent and they have been accepted in various hospitals, clinics, NGO conducted by Rehabilitation programmes etc. all across India.  Learned counsel for the petitioners places reliance on the Circular issued by the University of Mumbai bearing No.UG/133 of  2010. The said Circular indicates that the Mumbai University has accepted   the   guidelines   for   conducting   practicals   in   Cognitive Processes and Psychological testing and the practical examination for visually impaired students who pursue T.Y. B.A. Psychology as a single major  subject.  The said  Circular  specifically mentions that for  the experiments in   Psychology,  the visually  impaired  students  will  use materials converted wherever possible into accessible formats (Braille, audio, e­copy, tactile), and that the help and support of Resource Centres for the Visually Impaired like the Xavier’s Resource Centre for the   Visually   Challenged   can   be   taken   for   converting   the   required materials.   The   Circular   also   mentions   that   the visually   impaired students     can   take   assistance   of   a   writer­cum­helper   for   making observational   recordings   during   the   practicals   and  practical examination   wherever   required.   The   Circular   also   states   that   the practical examination of the visually impaired students   should be conducted in a separate room with suitable seating arrangement.  It is thus, contended that the Mumbai University has also recognized the need to make special provision for visually impaired students in order to help them to join the main stream. It is also vehemently submitted by the learned counsel for the petitioners that the petitioner that petitioner no.1 does not seek any relaxation in standard and/or examination as visually impaired student but is only seeking equal opportunity and right to full participation conferred  by the Disabilities Act, 1995. Heard   the  learned   counsel   for   the   parties,  perused   the letter of Indian Association  of Visually Impaired   Physiotherapists as also aforementioned Circular of Mumbai University. The Director of Medical Eduction and Research, Mumbai, did not have benefit of the material which is placed before us   while taking the stand in the  affidavit in reply dated 23.4.2010

 

Having   seen   the   negative   attitude   of   respondents   who have not considered the matter in proper perspective and have not cared to consider the object underlying the provisions of Disabilities Act,   1995,   we   are   of   the   view   that   it   is   desirable   that   the   Chief Commissioner   for   Persons   with   Disabilities,   Government   of   India should consider the entire matter in proper perspective and   issue suitable   instructions   to   the   concerned   authorities   in   the   country, including   the   universities   to   which   the   colleges   running   degree, diploma, certificate courses in physiotherapy are affiliated, so that the educational institutions make a beginning and the visually impaired students   ma not   suffer   difficulties   in   future   in   the   matter   of admission to such courses.  The Chief Commissioner shall accordingly take a decision in the matter within two months from today, after  giving an opportunity of hearing to all concerned. The   academic   year   has   already   commenced   and   the classes in the degree course in Physiotherapy are about to commence in the 1st week of this month, but  further hearing of this petition will take some time.  Hence, if no interim orders are passed at this stage, the purpose of entertaining this petition will be frustrated.  For   the   reasons   aforesaid,   by   this   interim   order   it   is directed that petitioner shall be granted provisional admission to the degree course of Bachelor  of   Physiotherapy by respondent No.6­ college   within   one   week   from   today. It   is further   directed   that petitioner No.1 shall be allowed to proceed with studies in the degree  course in Bachelor of Physiotherapy without any impediment, and if any  examination   is  to  be conducted,  the  petitioner  No.1  shall  be permitted to appear in the said examination. All concerned including the respondent­authorities shall pass necessary orders and take all necessary steps to implement these directions.  The respondents shall adopt positive approach as has been adopted by the University of Mumbai for the visually impaired students and special provisions are made for conducting their examination.

 

We also record the statement made by the leaned counsel for  the petitioners that petitioner  no.1 will procure the necessary material to be converted wherever possible into accessible formats (Braille, audio, e­copy, tactile). Petitioner no.1 shall be allowed to take   the help and support of Resource Centres for the visually impaired students like ‘Xavier’s   Resource   Centre   for   the   Visually   Challenged’,   Mumbai. Petitioner no.1 shall also be allowed to take help of writer­helper for making   observational   recordings   during   practicals   and practical examination wherever required. Seth G.S. College, Mumbai and KEM Hospital, Respondent No.6 which is represented by learned Advocate  Smt. Gharapure, shall take all necessary steps to implement these directions.

 

A copy of this order be made available to (1) Maharashtra State   Council   for   Occupational    Physiotherapy,   Mumbai,   and   (2) Maharashtra University of Health Sciences.A copy of this order shall also be made available to the learned counsel for the parties and the authorities for compliance.

 

 CHIEF JUSTICE 

S.C. DHARMADHIKARI, J.