Karnataka High Court
Dental Council Of India vs Miss Trishanthi. M. N. on 9 July, 2018
Equivalent citations: 2018 (4) AKR 649, (2018) 5 KANT LJ 762
Bench: Chief Justice, Krishna S Dixit
W.A.No.1435/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO.1435 OF 2018 (EDN-RES)
BETWEEN:
DENTAL COUNCIL OF INDIA
AIWAN-E-GALIB MARG
KOTLA ROAD,
NEW DELHI-110 002
REPRESENTED BY
SHRI. M L MEENA
NOW JOINT SECRETARY (LEGAL & ADMN.)
... APPELLANT
(BY SRI G.S. BHAT, ADVOCATE)
AND:
1. MISS TRISHANTHI. M. N.
D/O SHRI. NANDAKUMAR M.S.
AGED ABOUT 20 YEARS
R/AT MALGARA
GUTTI YADAHALLI POST
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577 432.
2. RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES
JAYANAGAR IV BLOCK
BENGALURU-560 041
W.A.No.1435/2018
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REPRESENTED BY ITS
REGISTRAR.
... RESPONDENTS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER
PASSED IN WRIT PETITION NO.52180/2017 DATED 03/04/2018.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
This intra Court appeal is directed against the order dated 03.04.2018, as passed in W.P.No.52180/2017, whereby a learned Single Judge of this Court has disapproved the endorsement issued by the appellant - Dental Council of India ('DCI') in declining the prayer of the writ petitioner (respondent No.1 herein) for migration from one dental college to another on medical grounds.
Put in brief, the facts related with the present appeal are that the writ petitioner - respondent No.1, pursuing her BDS Course in Maaruti College of Dental Sciences and Research Centre, Benglauru, had obtained 'No objection Certificate' for migrating to Vokkaligara Sangha Dental College and Hospital, Bengaluru, subject to approval by the W.A.No.1435/2018 -3- Rajiv Gandhi University of Health Sciences, Bengaluru and the appellant - DCI. The other college, whereto the writ petitioner was seeking transfer, also gave its consent. However, the appellant - DCI, in its impugned endorsement dated 24.10.2017, refused to grant permission for such migration on the ground that the writ petitioner was alleged to be suffering from Cervical Spondylitis, but was not falling within the compassionate ground criteria under the revised BDS Course Regulations, 2007 so as to allow her migration from one college to another.
In the writ petition preferred against the aforesaid endorsement dated 24.10.2017, the learned Single Judge referred to the applicable Regulations and the contentions of the present appellant that migration on compassionate ground criteria was limited only under two circumstances viz., (i) death of the supporting guardian; and (ii) disturbed conditions as declared by the Government in Dental College area. The learned Single Judge also considered the undisputed facts about the adverse medical condition of the writ petitioner, who was diagnosed with Cervical Spondylitis and was advised bed W.A.No.1435/2018 -4- rest and to avoid travel; as also the submissions of writ petitioner that she was seeking migration to a college, where hostel facility was available and which was near to the hospital of her treatment; and further, the fact that both the colleges had given consent for such migration. The learned Single Judge further took note of a decision of the Division Bench of Madras High Court in the case of the Dental Council of India, Rep. by its Secretary, New Delhi vs. Fathima Thameema P.K.: 2017 SCC Online Madras 10905, wherein such a migration was allowed on medical conditions.
The learned Single Judge observed that the expression "compassionate ground criteria" was of wider import and not restricted to one or two specified circumstances; and that adverse health conditions of a candidate could also sometimes furnish a valid and reasonable ground for seeking migration. The learned Single Judge, therefore, proceeded to allow the writ petition, while observing, inter alia, as under:
"11. The words "compassionate grounds criteria" itself is of wider import and cannot be restricted to one or two specified circumstances. The adverse health conditions of a candidate can also sometimes furnish a valid and reasonable W.A.No.1435/2018 -5- ground for seeking migration, depending upon the facts of each case.
12. One cannot lose sight of the fact that both the concerned colleges have given their consent and No Objection in the matter, meaning thereby that there is no disturbance to the existing students' strength in that particular Course in either of the colleges by such transfer and migration sought by the present petitioner.
13. The job of Dental Council of India in such cases is mainly administrative in character only, viz., to see that the Regulations are not flouted. However, if the Regulation leaves a discretion open for the concerned Authority to verify as to whether a particular reason for seeking migration amounts to a compassionate ground for allowing the same or not, the application of mind by the concerned Authority to the relevant facts of the case becomes important and it cannot be mechanically rejected by the said Authority.
14. In the present case, in the absence of any ceclaration made by the Government about the specified 'disturbed conditions' so as to restrict the consideration of such Applications on compassionate grounds to those fact situations, this Court is not inclined to uphold the contention of the Respondent Dental Council of India on the said ground.
15. On the contrary, the reasons assigned by the Division Bench of the Madras High Court in the case of Dental Council of India (supra) appear to be more appropriate and worthy of being followed.
16. With great respects therefore, following the aforesaid reasoning, this Court is inclined to allow the present writ petition and W.A.No.1435/2018 -6- quash the impugned Endorsement of the Dental Council on India Annexure E dated 24/10/2017."
Seeking to challenge the order aforesaid, learned counsel for the appellant has vehemently argued that the migration of the writ petitioner/respondent No.1 is against the provisions of the BDS Course Regulations, 2007, which provide migration on compassionate ground only on: (i) death of the supporting guardian; and (ii) disturbed conditions as declared by Government in Dental College area. Learned counsel has further argued that the writ petitioner is seeking migration from one college at Bengaluru to another college also at Bengaluru without any justifiable reasons and the relief, as claimed in this matter, ought to have been declined.
Learned counsel for the appellant has referred to and relied upon the decision of the Division Bench of the Madhya Pradesh High Court dated 17.05.2017 in W.P.No.7836/2016:
Dr. Anand Rai vs. Medical Council of India and Ors. He has further referred to the decision of the Hon'ble Supreme Court dated 15.11.2017 in C.A.No.18766/2017: Dental Council of India vs. Anhad Raj Singh and Another. With reference to W.A.No.1435/2018 -7- these decisions, learned counsel would argue that the migration, as claimed in the present case, being against the Regulations of DCI, deserves to be declined.
Having given thoughtful consideration to the submissions made and having examined the record with reference to the law applicable, we are not inclined to consider interference in the order passed by the learned Single Judge in this case.
The relevant part of BDS Regulations, 2007, pertaining to migration, reads as under:
"IV. Migration:
1. Migration from one dental college to another is not a right of a student. However, migration of students from one dental college to another dental college in India may be considered by the Dental Council of India. Only in exceptional cases on extreme Compassionate grounds*, provided the following criteria are fulfilled. Routine migrations on other ground shall not be allowed. (2) Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognized by the Dental Council of India.
(3) The applicant candidate should have passed first professional BDS examination. (4) The applicant candidate submits his application for migration, complete in all respects, to all authorities concerned within a period of one W.A.No.1435/2018 -8- month of passing (declaration of results) the first professional Bachelor of Dental Surgery (BDS) examination.
(5) The applicant candidate must submit an affidavit stating that he/she will pursue 240 days of prescribed study before appearing at IInd professional Bachelor of Dental Surgery (BDS) examination at the transferee dental college, which should be duly certified by the Registrar of the concerned University in which he/she is seeking transfer. The transfer will be applicable only after receipt of the affidavit.
Note 1:
(i) Migration is permitted only in the beginning of IInd year BDS Course in recognised Institutions.
(ii) All applications for migration shall be referred to Dental Council of India by the college authorities. No Institution/University shall allow migration directly without the prior approval of the Council.
(iii) Council reserves the right not to entertain any application which is not under the prescribed compassionate grounds and also to take independent decisions where applicant has been allowed to migrate without referring the same to the Council.
Note 2: *Compassionate ground criteria.
(i) Death of supporting guardian.
(ii) Disturbed conditions as declared by Government in the Dental College area."
In the case of Dr.Anand Rai (supra), the Madhya Pradesh High Court was essentially considering the issues raised before it that the benefit of migration was being allowed W.A.No.1435/2018 -9- in undeserving cases to the children and relatives of ministers and officers, while the same was being denied to others. In the given circumstances, and to curb the improper and rather questionable implementation of Regulations, the Madhya Pradesh High Court observed and directed as under:
"It is also observed that the provisions relating to migration provided under the Regulations framed by the M.C.I. and D.C.I. have to be strictly adhered to and the benefit thereunder can only be granted in respect of cases which fall within the parameters contained therein, keeping in mind the other mandatory regulations of the M.C.I. and D.C.I. relating to vacancy of seats, adhering to the teacher student ratio, mid session migrations and the fact as to whether migration from private medical colleges can be granted in Government medical colleges to students who have otherwise been unable to qualify for admission in such Government colleges on merits by adopting the devious method of migration.
However, as both the M.C.I. and D.C.I. have stated before this Court on affidavit that they shall in future be careful and vigilant in exercising this power and that they shall not give any undue benefit to the relatives and children of either ministers, I.A.S. or IP.S. officers and shall generally apply these regulations to all category and class of students and as on date, we are not required to examine the validity of any order of migration in the present petition, the petition filed by the petitioner is disposed of with a direction to the M.C.I. and the D.C.I. to strictly adhere to the regulations relating to migration, by implement W.A.No.1435/2018
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them in a uniform manner without discrimination and ensuing that they are not utilized for the purposes of granting benefit only to high placed individuals and that they are exercised only in cases which fulfill the criteria laid down and prescribed under the M.C.I. and D.C.I. regulations.
With the aforesaid observations/directions, the petition filed by the petitioner stand disposed of."
The matter before the Hon'ble Supreme Court in C.A.No.18766/2017 had been of appeal against an interim order passed by the Division Bench of Delhi High Court. In the said case, the learned Single Judge of the High Court did not interfere with the decision of DCI in declining to provide for migration on health grounds. However, in appeal, the Division Bench, even while issuing notices, passed an interim order of mandatory nature, whereby it was enjoined upon the authorities to allow the migration, as prayed for.
The Hon'ble Supreme Court did not approve of such a mandatory order that was passed without considering the Regulations and the applicable decisions and at the interim stage. Hence, while setting aside such an interim order, the W.A.No.1435/2018
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Supreme Court directed the High Court to dispose of the intra Court appeal at an early date.
We may also take note of the fact that the said intra Court appeal before the Delhi High Court was ultimately decided on 08.05.2018, where the Division Bench took the view that the aforementioned Note 2 of the Regulations, even while elaborating on the criteria of extreme compassion for migration, restricted the discretion of DCI to only two given conditions. The Division Bench of Delhi High Court also pointed out that the challenge to the aforesaid two conditions was not being considered, for the appellant seeking the aid of general regulations permitting the DCI to authorize migration on the ground of extreme compassion. In the result, the Court declined to interfere in the exercise of discretion by the DCI, which had taken into account the medical records of the candidate.
In contrast to the above decision of the Delhi High Court, it is noticed that in the case of Fathima Thameema PK (supra), which was relied upon by the learned Single Judge, W.A.No.1435/2018
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the Division Bench of Madras High Court found the case of writ petitioner therein to be that of degeneration of L4, L5 and L5-S1 disc bulge and as per medical report, her condition was to aggravate upon undertaking 84 kms of travel everyday. In that case, the Division Bench of Madras High Court approved the view of the Single Judge that the referred Regulation was not an exhaustive one and the writ petitioner's case was to be viewed with compassion in view of her health condition. The order passed by the Supreme Court in the case of Anhad Raj Singh (supra) was also cited to which, the Madras High Court pointed out that therein, the candidate was suffering from asthma, but the medical condition of the writ petitioner was different and severe and was of an exceptional character.
Having examined the law applicable, we are unable to agree with the submissions made on behalf of the appellant that the two circumstances enumerated in Note 2 of the Regulations relating to migration are those of 'only' criteria on which the migration could be allowed.
W.A.No.1435/2018
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The said Regulation IV is indeed made for allowing migration from one dental college to another; of course, not as a matter of right and only in exceptional cases on extreme compassionate grounds. Noteworthy it is that the strict requirements towards eligibility for migration have been spelt out in clauses (2) to (5) and then in Note 1 of Regulation IV ibid., giving effective control to the appellant - DCI over the matter and restricting permission to migrate only after completion of the first professional BDS examination and only in the beginning of II year BDS Course.
It is not the case of the appellant that the writ petitioner is otherwise ineligible on any of the conditions mentioned in the said clauses (2) to (5) and Note 1.
As regards the compassionate grounds, we are clearly of the view that the expression 'only' occurring in clause (1) of Regulation IV merely specifies that migration could be allowed only in exceptional cases. With respect, we are unable to find any reason to interpret the said expression to mean that the migration is restricted to the two circumstances mentioned in W.A.No.1435/2018
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Note 2 or that migration could never be granted except for the said two circumstances.
on a purposive interpretation of the provisions contained in said Regulation IV, we are clearly of the view that the two grounds mentioned in Note 2, though are of extreme nature i.e., death of the supporting guardian and disturbed condition as declared by the Government in the area in question but then, the said Note 2 cannot be considered to be that of exhaustive enumeration of all the possible grounds for permitting migration on compassionate basis. For its very nature and purport, the said Note 2 could only be considered as illustrative of some of the extreme compassionate grounds, but we are unable to read in the said Regulations any such restriction that the migration could never be allowed except on the said grounds stated in Note 2.
It needs hardly any emphasis to point out that apart from the two circumstances mentioned in the said Note 2, there could be several other imponderables, which may occur in the life of a candidate and for which, migration may have to W.A.No.1435/2018
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be sought for, so as to continue with the studies in an appropriate manner. Extreme conditions of illness and health problems could be one such eventuality. We do not propose to itemize various other conditions, which may ultimately be of handicap for a candidate to properly pursue the studies in one institution and which may reasonably be met by way of migration to an appropriate institution but the possibility of such eventualities cannot be ignored. The fact that there could still be other grounds than those mentioned in Note 2 finds indication in clause (iii) of Note 1, where the appellant - DCI has reserved the right not to entertain any application not falling under the prescribed compassionate ground. The said clause is at least indicative of the fact that there may be an application, which may not fall strictly under the enumerated grounds. The appellant, undoubtedly, carries the right not to entertain any such application but it inhers in such a right that the same would be exercised in a reasonable manner; and, it is not laid down as a rule of thumb that every such application which does not fall strictly under the enumerated grounds has to meet with denial alone, irrespective of the nature of ground W.A.No.1435/2018
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for seeking migration. The migration is allowed under the Regulation IV itself, of course, in exceptional cases, but on extreme compassionate ground. When such a proposition is adopted for the reason of compassion towards the candidates, one would only be left to wonder, if an extreme adverse medical condition of a candidate would not evoke compassion?
For what has been discussed hereinabove, with respect, we are unable to follow the decision of the Delhi High Court in Anhad Raj Singh case (supra), where the High Court has proceeded on the assumption that the circumstances stated in Note 2 of Regulation IV are the 'only' grounds on which migration could be allowed and they restrict the discretion of DCI. In fact, the migration itself is permitted in exceptional cases on extreme compassionate grounds. When it has not been specified in the Regulations that such extreme compassionate grounds are also limited to the circumstances mentioned in Note 2, we find no reason to read any such restriction in the matter of discretion of DCI. W.A.No.1435/2018
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Looking to the object and purpose of the said Regulations, we are inclined to agree with the decision of the Madras High Court in Fathima Thameema PK (supra) that the Regulation IV is not an exhaustive one. In the said case, compassionate ground migration was allowed to the candidate suffering from extreme medical conditions.
The facts of the present case bring forth two peculiarities. One is that the writ petitioner is shown to be suffering from Cervical Spondylitis and has been advised bed rest and to avoid travel. The severity of the referred ailment may vary from person to person, but the case of the writ petitioner had been of troublesome nature, as could be noticed from the fact that the treating hospital has advised her bed rest and to avoid travel.
The other peculiar aspect of the matter is that the writ petitioner is seeking migration from one college in the city of Bengaluru to another college in the same city, but while specifically pointing out that in the college of migration, she W.A.No.1435/2018
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would be able to avail hostel facility so as to avoid travel and would be nearer to KIMS Hospital for her treatment.
The reasons and circumstances mentioned by the writ petitioner cannot be said to be of any pretentious projection of her case. On the contrary, the specific reason for migration so as to avail the hostel facility and thereby to avoid travelling as per the medical advice appear to be more of her bona fide. Avoiding travel in a city like Bengaluru by the student who is Cervical Spondylitis patient and who is advised bed rest cannot be ignored as an irrelevant or baseless ground.
It is also noticed that the appellant - DCI, in its impugned endorsement dated 24.10.2017, did not advert to the ground as stated by the writ petitioner seeking migration, but rejected her prayer only with reference to the aforesaid two circumstances mentioned in Note 2 and then, to the aforesaid decision of the High Court of Madhya Pradesh in Dr. Anand Rai's case. We are unable to approve the approach of the appellant - DCI in rejecting a prayer for W.A.No.1435/2018
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migration without even adverting to the ground and the reasons and the circumstances stated by a candidate.
The learned Single Judge has taken into comprehension all the facts and circumstances of the case and has, thereafter, granted the relief to the writ petitioner on relevant considerations. In the given set of facts and circumstances, we are unable to find any such error or infirmity in the order passed by the learned Single Judge, which may call for interference in this intra Court appeal.
In view of the above, the appeal fails and is, therefore, dismissed.
The pending interlocutory application also stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ca