Date of judgement:
Monday, August 2, 2010
WRIT PETITION NO. 979 OF 2010
: MOHIT S. SHAH C.J. AND S.C. DHARMADHIKARI, J.
A visually impaired student appeared for XIIth standard examination of Maharashtra State Higher Education Board and secured 101 out of 200 marks. Although he secured 24th rank amongst the physically challenged (Specified Reservation Merit), he was not given admission, while others having scored less than him were given admission to the course. In the following circumstances the petitioner pleaded for admission for the course as per provison of UNCRPD Article 24 and PWD Act.
It was directed that the petitioner shall be granted provisional admission to the degree course of Bachelor of Physiotherapy, and be allowed to proceed with studies in the degree course without any impediment. It was further stated that he be allowed to take the help and support of Resource Centres like ‘Xavier’s Resource Centre for the Visually Challenged’, Mumbai.
Judgment Body :
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.
S.C. DHARMADHIKARI, J.
Ms. Kritika Purohit & Anr.
The State of Maharashtra, through the Secretary, Department of Medical Education & Drug Control & Anr
Ms. Kanchan Pamnani
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
Type of Disability:
Bombay High Court